Download - The Graduate Institute, Geneva

DIPLOMATIC ASSURANCES, SOFT LAW AND THE INSTRUMENTALIZATION OF
NORMATIVITY: THE FAILURE OF THE LIBERAL DREAM
Vassilis Pergantis
I. Introduction
In his masterpiece Der Zauberberg, Thomas Mann tells us about the story of
Hans Castorp, a “life’s delicate child”, who finds himself paying a 7-year visit to a
sanatorium. There, while fighting life’s dangers, Hans finds its spiritual mentor in
Herr Settembrini, an Italian humanist. The latter will try to protect Hans Castorp from
the formidable seduction of the sanatorium’s way of living. Through long
discussions, Herr Settembrini inducts Hans into his enlightened worldview – a liberal
world based on the ideals of justice, freedom and knowledge. In one of their
meetings, he reveals to his pupil his association to the International League for the
Organization of Progress, a group of scholars aiming at the improvement of the
human being through, among other means, “the development of international law” 1
as the humanist submits.
Settembrini’s identification of progress with international law is neither a
personal caprice, nor just part of Thomas Mann’s artistic imagination. Generations of
international lawyers have adopted a vocabulary of progress, a liberal project. 2
Liberalism was exemplified in the ideals of peace, justice and human dignity and
international law was considered the best means for achieving those ends. 3 There is
no doubt that international lawyers and their law inherently favour the international
over conservative nationalism, institutionalisation and universal human rights over
sovereignty; these elements are the essence of cosmopolitan liberalism. 4 And the
theory of normativity, namely the way bindingness is constructed, emerged from
this liberal project and has served it. Through the idea of a normative threshold,
normativity discourse allegedly assures international law’s objectivity, while the
reception of soft law in the international legal realm makes place for the
accommodation of the core liberal ideals.
This paper examines the way the debate on normativity (both its formalistic
1
Thomas Mann, The Magic Mountain (transl. H.T. Lowe-Porter), 1932, London, Martin Secker, at 311.
2
See Thomas Skouteris, “The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of
Stelios Seferiades”, 16 EJIL (2005), pp. 823-856.
3
See Koskenniemi, Martti, What is International Law For?, in Malcolm Evans (ed.), INTERNATIONAL LAW (2003) 1 ,
Oxford: Oxford University Press, pp. 89-114, at 89, citing Tomuschat, Christian, International Law: Ensuring the
Survival of Mankind on the Eve of a New Century: General Course on Public International Law, 281 RCADI (1999),
pp. 9-438.
4
Koskenniemi, Martti, International Law in a Post-Realist Era, 16 AYIL (1995), σ. 1-19, at 1.
1

and its idealistic aspect) has been manipulated. It focuses on the particular case of
diplomatic assurances against torture. Firstly, we analyze the discussion over the
normative quality of diplomatic assurances (II). Then, the paper opens up to a
broader discussion about normativity as exemplified by the soft law thesis (III).
Finally, we conclude by returning to the particular case of diplomatic assurances and
highlighting the inadequacy of a legal answer in the specific case of diplomatic
assurances and the broader framework of the war on terror measures. The inevitable
turn of international lawyers to ethics through an appeal to the foundations of liberal
legalism (justice and humanism) cannot conceal the surrender of liberal project to
force, to empire speaking (IV).
II. Diplomatic Assurances and the Normative Question
Following the London bombings of July 2005, the British Prime Minister Tony
Blair stepped up and declared that the rules of the game were changing. When
inquired about the possible inconformity of the new anti-terrorist measures with the
European Convention on Human Rights 5 he replied that “should legal obstacles
arise, we will legislate further including, if necessary, amending the Human Rights
Act in respect of the interpretation of the European Convention on Human Rights”. 6
Short time after, the British government announced that it had reached an agreement
with Jordan 7 providing for diplomatic assurances that deported individuals will be
treated in conformity with human rights obligations under international law and
thus they will not be subjected to torture or inhumane and degrading treatment 8
upon return. This agreement, followed by analogous ones with Libya and Lebanon
the same year 9 , resembles similar initiatives in other States, such as the United States
5
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into
force Sept. 3, 1953.
6
Tony Blair’s Press Conference, 5 August 2005, available at www.number10.gov.uk/Page8041.
7
Memorandum of Understanding between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the Hashemite Kingdom of Jordan Regulating the Provision of
Undertakings in Respect of Specified Persons Prior to Deportation, 10 August 2005, reproduced in 76 BYIL
(2005), pp. 776 et seq.
8
It should be noted that the Kingdom of Jordan is a party to the International Covenant on Civil and Political
Rights, GA Res. 2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS 171, and to the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS
85. As far as Great Britain is concerned, apart from the above mentioned instruments it is also party to the
ECHR.
9
Memorandum of Understanding Between the General People’s Committee for Foreign Liaison and
International Co-Operation of the Great Socialist People’s Libyan Arab Jamahiriya and the Foreign and
Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland Concerning the
Provision of Assurances in Respect of Persons Subject to Deportation, 18 October 2005; Memorandum of
Understanding Between the Government of the Unietd Kingdom of Great Britain and Northern Ireland and
the Government of the Lebanese Republic Concerning the Provision of Assurances in Respect of Persons
Subject to Deportation, 23 December 2005, both reproduced in 76 BYIL (2005), pp. 779 et seq. and 783 et seq.
respectively.
2

and Sweden. States have resorted to diplomatic assurances in order to implement
their anti-terrorism policies of deportation of individuals considered a threat to
national security without violating the principle of non-refoulement. 10
The various human rights protection regimes 11 link the prohibition of torture
and other inhuman or degrading treatment to an obligation not to proceed to the
extradition, expulsion, deportation or other type of (extra-legal) transfer of
individuals to their country of origin or any other country if they will face there a
real risk of torture or ill-treatment (principle of non-refoulement). 12 This additional
obligation purports to reinforce the prohibition of torture by denying states the
faculty to circumvent it without committing torture themselves by sending
individuals to other countries, where they would be subjected or be likely to be
subjected to torture. Any other understanding would risk to seriously compromising
the effectiveness of the prohibition of torture. 13
It should be also noted that the prohibition of torture and the principle of
non-refoulement are of an absolute nature. This means, on the one hand, that they are
non-derogable in times of war or public emergency 14 , and, on the other hand, that
there can be no exception to them or any relaxation justified by the extraordinary
circumstances of a case or the activities of the concerned individual. 15 As the ECHR
has recently affirmed,
“it is not possible to weigh the risk of ill-treatment against the reasons put
forward for the expulsion in order to determine whether the responsibility of a
State is engaged under Article 3...In that connection the conduct of the person
10
For the legal framework in the US, see Diplomatic Assurances, Statement for the Record by John B. Bellinger,
III, Legal Advisor to the Secretary of State, Before the House Foreign Affairs Subcommittee on International
Organizations, Human Rights, and Oversight, 10 June 2008, available at http://foreignaffairs.house.gov/
110/bel061008.htm.
11
The scope of the ICCPR, the CAT and the ECHR is not identical as far as the prohibition of torture is
concerned. The ICCPR and the ECHR do not explicitly provide for the prohibition to expose someone to the
danger of being subjected to torture upon expulsion, return or extradition to another State, but the principle of
non-refoulement has been recognized by the Human Rights Committee in its 2 nd General Comment on Article 7
of the Covenant (see General Comment 20, Article 7 (Forty-fourth session, 1992), UN Doc. HRI/GEN/1/Rev.1
at 30 (1994), § 9) and by the ECtHR in numerous cases starting from Soering v. UK, ECtHR, decision of 7 July
1989, Application No. 14038/88, Ser. A No. 161 = 11 EHRR, pp. 439 et seq. On the contrary the CAT provides
explicitly for the principle of non-refoulement (Art. 3), which only applies to the prohibition of torture (Art. 1)
and does not extend to cruel, inhuman or degrading treatment prohibited in Art. 16 CAT. In addition to this,
the acts of torture and cruel, inhuman or degrading treatment are punishable in the CAT only if committed by
state officials. See the observations of Nowak, Manfred and McArthur, Elizabeth, THE UNITED NATIONS
CONVENTION AGAINST TORTURE: A COMMENTARY, 2008, Oxford, Oxford University Press, pp. 165 et seq.
12
See Art. 3§1 of the CAT: “No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
13
See the observations of the European Court of Human Rights in Soering v. United Kingdom, judgment of 7
July 1989, ECtHR, Ser. A No. 161 = 11 EHRR, pp. 439 et seq., §§ 87-88.
14
See, for example, Art. 15§§1-2 of the ECHR; Article 4§§1-2 of the ICCPR.
15
See Duffy, Aoife, Expulsion to Face Torture? Non-refoulement in International Law, 20 International Journal of
Refugee Law (2008), pp. 373-390, passim; Arbour, Louise, In Our Name and On Our Behalf, 55 ICLQ (2006), pp.
511-526, at 517-518.
3

concerned, however undesirable or dangerous, cannot be taken into
account...”. 16
Therefore, arguments of the “ticking time bomb” kind 17 or claims for balancing the
risk of harm against the alleged dangerousness of the deported person for the
security of the community 18 do not hold water.
The absolute character of those rules, however, does not signify the
elimination of discretion in their application. First of all, human rights – as all other
norms – are cast in linguistic form; and linguistic forms can always give rise to
indeterminacy. 19 Definitions, even clear-cut ones, require interpretation (i.e. whether
a specific behaviour constitutes torture or not) and principles come with
counterprinciples. But more importantly, human rights are not the articulation of an
objective reason or truth – and this is so even for the so-called fundamental rights.
They are the product of a constant clash between different and usually opposing
values. Finally, there is a tendency to re-conceptualize the various opposing values
as a human rights issue. In the case of the principle of non-refoulement, for example,
governments have appropriated human rights language in order to express their
security concerns. 20 So, the argument about human rights’ absoluteness or objectivity
reflects an unattainable aspiration rather than reality. 21
This is very well illustrated in the case of the principle of non-refoulement.
16
Saadi v. Italy, ECtHR (Grand Chamber), Application No. 37201/06, judgment of 28 February 2008, §138,
reaffirming the findings of the Court in the Chahal case; see Chahal v. UK, judgment of 15 November 1996,
ECtHR, REPORTS OF DECISIONS AND JUDGMENTS (1996-V), pp. 1831 et seq. = 23 EHRR, pp. 413 et seq., §§79-81. The
CAT Committee has taken the same approach by stressing that “the test of article 3 of the Convention is
absolute...The nature of the activities in which the person concerned cannot be a material consideration when
making a determination under article 3 of the Convention”; Gorki Ernesto Tapia Paez v. Sweden, Communication
No. 39/1996, UN Doc. CAT/C/18/D/39/1996 (1997), §14.5.
17
Nowak, Manfred, Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment, 23 NQHR
(2005), pp. 674-687, at 675. In the US, however, some scholars have called for a relaxation of the prohibition of
torture. For a summary, see Glennon, Michael J., The Present State of Research Carried Out by the English Speaking
Section of the Centre for Studies and Research, in TERRORISME ET DROIT INTERNATIONAL, Centre d’étude et de
recherche de droit international et de relations internationales=TERRORISM AND INTERNATIONAL LAW, Centre for
Studies and Research in International Law and International Relations, 2007, The Hague, Brill, pp. 105-160, at
131-134.
18
But see the Supreme Court of Canada’s assertion that a balancing approach might be admissible in
Manickavasagam Suresh v. Canada (Minister of Citizeship and Immigration), 2002 SCC 1, File No. 27790, §129;
see also Ramzy v. The Netherlands, Observations of the Governments of Lithuania, Portugal, Slovakia and the United
Kingdom, 21 November 2005, available at www.redress.org/publications/
GovernmentintervenorsobservationsinRamzy%20case22November.pdf, §§3.2-3.3.
19
Klabbers, Jan, The Meaning of Rules, 20 INTERNATIONAL RELATIONS (2006), σ. 295-301.
20
See the comments of Moeckli, Daniel, Saadi v. Italy: The Rules of the Game Have Not Changed, 8 HRLR (2008),
pp. 534-548, at 541-542.
21
These observations draw from the following works: Douzinas, Costas, HUMAN RIGHTS AND EMPIRE. THE
POLITICAL PHILOSOPHY OF COSMOPOLITANISM, 2007, New York, Routledge, pp. 59-60; Fish, Stanley, Introduction:
Going down the Anti-Formalist Road, in DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE
OF THEORY IN LITERARY AND LEGAL STUDIES, 1989, Oxford, Clarendon Press, pp. 1-36; Koskenniemi, Martti, The
Effect of Rights on Political Culture, in Philip, Alston (ed.), THE EU AND HUMAN RIGHTS (2002), Oxford: Oxford
University Press, pp. 99-116.
4

Expression of a necessary compromise between the value of human dignity and the
State’s prerogative to remove persons from its jurisdiction, the test for the
application of the principle highlights this compromise through its ambiguity: a
person should not be returned if there are substantial grounds for believing that it
would be in danger of being subjected to torture upon return. 22 The risk of torture
should be real and/or foreseeable and a pattern of human rights violations and
torture in the country of return strengthens the belief that substantial grounds exist,
but does not suffice on its own for determining whether the principle is breached or
not. In addition to this, the scrutiny standard requires governments to proceed to a
speculative appreciation of the situation after return, while human rights bodies
examining claims concerning the violation of the principle usually reach their verdict
also on the basis of subsequent (to return) information. 23
All these qualifications allow governments to shape the test by invoking
different elements that should be taken into consideration. It is against this
background that the practice of diplomatic assurances takes place and should be
assessed. More precisely, diplomatic assurances aim at reducing the risk of torture
below the threshold set by the principle of non-refoulement in countries where torture
is an endemic phenomenon. They form part of the factual evidence when examining
the non-refoulement test. But while they have been presented as a way of complying
with human rights obligations 24 , many international lawyers sharply criticise states
for the use of assurances. Diplomatic assurances are considered insufficient
safeguards against torture and states using them are accused of indirectly trying to
free themselves of their legal obligations. Some circles even suggest that diplomatic
22
It should be noted that this phrase is a combination of the various standards of scrutiny applied in assessing
the risk of torture and ill-treatment in refoulement cases; for more details, see Expert Workshop on Human Rights
and International Co-operation in Counter-Terrorism, 15-17 November 2006, Final Report, OSCE Office for
Democratic Institutions and Human Rights – Office of the Unites Nations High Commissioner for Human
Rights, Doc. ODIHR.GAL/14/07, 21 February 2007, available at http://www.osce.org/documents/odihr/
2007/02/23424_en.pdf, §16; see also Schimmel, Constanze Alexia, Returning Terrorist Suspects against
Diplomatic Assurances: Effective Safeguard or Undermining the Absolute Ban on Torture and Other Cruel, Inhuman
and Degrading Treatment?, available at http://www.nottingham.ac.uk/shared/shared_hrlcpub/Schimmel.pdf
23
See for example the Case of Mamtkulov and Askarov v. Turkey, ECtHR, Applications Nos. 46827/99 and
46951/99, judgment of 4 February 2005, REPORTS OF JUDGMENTS AND DECISIONS 2005-I, §§67-68, where the
ECtHR declared that “it will have to assess Turkey’s responsibility under Article 3 by reference to the situation
that obtained on 27 March 1999 [day of extradition]” but then decided “in the light of the material before it”,
which led some judges and some scholars to suggest that the Court placed reliance also on the medical reports
from the doctors of the Uzbek prisons after the extradition had taken place; see Joint Partly Dissenting Opinion
of Judges Sir Nicolas Bratza, Bonello and Hedigan, ibid, §§9 and 12 of the opinion. See also Walker, Clive, The
Treatment of Foreign Terror Suspects, 70 MODERN LAW REVIEW (2007), σ. 427-457, at 448. See also the CAT
Comittee’s euphemism that “subsequent events are relevant to the assessment of the State party’s knowledge
actual or constructive at the time of removal” (Brada v. France, Application No. 195/2002, decision of 17 May
2005, UN Doc. CAT/C/34/D/195/2002 (2005)) after being accused of making an ex post fact assessment of the
risk in previous cases.
24
See Jones, Kate, Deportations with Assurances: Addressing Key Criticisms, 57 ICLQ (2008), σ. 183-194, at 185.
5

assurances as such violate the principle of non-refoulement. 25
While diplomatic assurances have more of a factual value in the nonrefoulement
test as we have explained, much of the debate over them ultimately boils
down to a quarrel concerning their normative quality. 26 This normativity discourse
undoubtedly highlights the different conceptions on and the calculated invocation of
normativity by international actors. What concerns us here is the effect of diplomatic
assurances on the logic and functioning of the sources doctrine and human rights
law. After examining the features of diplomatic assurances and determining how
they influence the discussion about their normative status, we will focus on the
answers the various actors of the international system give to that question.
As far as their form is concerned, diplomatic assurances usually take the form
of notes verbaux issued by the Embassy or the Ministry of Foreign Affairs of the State
of return and addressed to the requesting State. These letters sometimes include
guarantees provided by the judicial or the executive branch. 27 There is a question
whether diplomatic assurances constitute an understanding between the parties or a
unilateral act. Based on the practice so far, it seems that diplomatic assurances are
the end product of an exchange of notes between two States which consequently
reach an understanding concerning the promises made. 28 While diplomatic
assurances are usually requested and provided on a case-by-case basis 29 , there have
been attempts for a more encompassing approach. The British government, for
example, has concluded memoranda of understanding (MOUs), which include
25
See for example, Amici Curiae Brief for Organisation mondiale contre la torture and the Redress Trust in Support of
Petitioner-Appellee Sameh Sami S. Khouzam, and for Affirming the Judgment of the District Court, available at
http://www.redress.org/publications/OMCT%20REDRESS%20BRIEF%20KHOUZAM.pdf, passim. But see
the conclusion of the US judge in this case, that “diplomatic assurances do not, per se, violate CAT” (Sameh
Sami S. Khouzam v. Thomas H Hogan, et al., United States District Court for the Middle District of Pennsylvania,
3:CV-07-0992 (Judge Vanaskie), order of 10 January 2007, at 2), and the much more cautious language used by
Nowak, Manfred and McArthur, Elizabeth, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A
COMMENTARY, 2008, Oxford, Oxford University Press, at 214-215, who argue that “diplomatic assurances with
regard to torture are nothing but attempts to circumvent the absolute prohibition of torture and refoulement”.
26
See Schimmel, Constanze Alexia, op. cit., note ??: “it could be argued that the more ‘binding’ the
assurance...the bigger the impact on the risk assessment carried out by the removing state”.
27
For example, see Youb Saoudi v. Spain, ECtHR (5th Chamber), Application No. 22871/06, decision on
admissibility of 18 September 2008. The ECtHR has sometimes placed considerable weight on which authority
issues the assurances, and whether it is empowered in practice to deliver its promise; see, for example,
Shamayev and Others v. Georgia and Russia, ECtHR (2 nd Ch.), Application No. 36378/02, judgment of 12 April
2005, §§344-345; Abu Salem v. Portugal, ECtHR (2 nd Chamber), Application No. 26844/04, decision on
admissibility of 9 May 2006, at 7.
28
There is a question, however, what happens when the exchange of notes reveals a varying content. Can we
speak of an understanding or is it more of a unilateral undertaking, and can the requesting States rely on it as a
diplomatic assurance? The ECtHR’s stance in the case Saadi v. Italy, ECtHR (Grand Chamber), Application No.
37201/06, judgment of 28 February 2008, is rather ambiguous, since the Court stressed that Tunisia did not
provide the assurances sought by Italy (§147), without really answering whether the Tunisian representations
constituted diplomatic assurances in the first place.
29
See the explanations given by the legal advisor to the US Secretary of State, John B. Bellinger, III, in op. cit.,
note ??. In the United States diplomatic assurances remain strictly confidential.
6

general clauses concerning the lawful treatment of deportees, “whilst also allowing
the Government to seek more specific personal assurances depending on individual
circumstances”. 30 More recently, a discussion has been initiated in the framework of
the Council of Europe about the drafting of guidelines concerning diplomatic
assurances. The Council decided, however, to reject such an idea, since any other
decision might have been seen as a legitimisation of this controversial practice. 31
The informality of diplomatic assurances is not a conclusive factor in the
debate on bindingness. The same applies for the nomenclature of an instrument. The
ILC, for example, suggested in the commentary to its draft articles on the Law of
Treaties that “very many single instruments in daily use, such as “an agreed minute”
or a “memorandum of understanding” could not appropriately be called formal
instruments, but they are undoubtedly international agreements subject to the law of
treaties”, that is binding agreements. 32 In the same vein, the ICJ observed when
dealing with the normative status of a joint communiqué that “it does not settle the
question [of the communiqué’s normative character] simply to refer to the form...in
which that act or transaction is embodied”. 33 In another instance, it declared that
“international agreements may take a number of forms and be given a diversity of
names”. 34 Consequently, one needs to examine other characteristics of diplomatic
assurances to pronounce on their normative status.
As far as the content of diplomatic assurances is concerned, there are two
divergent trends in State practice. Some diplomatic assurances simply reiterate the
international and domestic human rights obligations of the State of return. 35 These
assurances are sometimes presented as an adequate guarantee for reducing the risk
of torture, but many authors suggest that they do not serve the purpose of changing
30
Ninth Report of the Foreign Affairs Committee (House of Commons), 9 July 2008, available at
http://www.parliament.the-stationery-office.co.uk/pa/cm200708/cmselect/cmfaff/533/53302.htm, §65 and
Shah, Naureen, Knocking on the Torturer’s Door: Confronting International Complicity in the U.S. Rendition Program,
38 COLUMBIA HUMAN RIGHTS LAW REVIEW (2007), pp. 581-659, at 631-632. See, however, the particularities of
the case of the arrangement between the United Kingdom and Algeria in 76 BYIL (2005), pp. 672-673, where
assurances were given in an exchange of letters between the Algerian President and the British Prime Minister
supplemented by written arrangements in individual cases.
31
See Final Activity Report of the DH-S-TER on Diplomatic Assurances,, in 62 nd CDDH Report, Council of Europe,
CDDH(2006)007, 4-7 April 2006, §§17 and 20 ; see also the criticisms of Nowak, Manfred and McArthur,
Elizabeth, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY, 2008, Oxford, Oxford
University Press, at 216; Moeckli, Daniel, op. cit., at 537.
32
[1966] II, ILC YEARBOOK, at 188. See also Article 2 of the Vienna Convention on the Law of Treaties (adopted on
23 May 1969, entered into force on 27 January 1980), 1155 UNTS, pp. 331 et seq., which defines “treaty” as “an
international agreement...whether embodied in a single instrument or in two or more related instruments and
whatever its particular designation”.
33
Aegean Sea Continental Shelf case (Greece v. Turkey) (Preliminary Objections), Judgment of 19 December
1978, ICJ REPORTS (1978), pp. 3 et seq., §96.
34
Maritime Delimitation and Territorial Questions between Qatar and Bahrain case (Qatar v. Bahrain) (Jurisdiction
and Admissibility), Judgment of 1 July 1994, ICJ REPORTS (1994), pp. 112 et seq., §23.
35
See the assurances provided by Uzbekistan in the Mamatkulov case, op. cit., note ??, §28.
7

the situation of human rights violations in the country of return and do not offer any
protection to the deportee. According to them a regurgitation of obligations already
patently breached cannot have any impact whatsoever on the non-refoulement test. 36
Consequently, more recent assurances usually create a whole regime of guarantees
and procedural safeguards dealing with all parts of the deportation procedure and
after. The language of these promises does not always follow faithfully that of the
relevant international human rights instruments, and additional provisions
concerning procedural arrangements and monitoring might be included. 37
The dilemma between simply reproducing pre-existing human rights
commitments and drawing an alternative (to the multilateral) regime of protection
impacts on diplomatic assurances’ normativity discourse. If diplomatic assurances
simply repeat the relevant provisions of international human rights instruments, the
authority and effectiveness of those instruments is not directly challenged by the
bilateral practice, but diplomatic assurances do not really make sense and any
attempt to normatively differentiate between the assurances (suggesting that they
are non-binding) and human rights instruments (suggesting that they are binding)
might seem rather bizarre. If, on the contrary, we insist on going beyond a mere
reiteration of existing obligations, the creation of a parallel to international human
rights instruments regime might seriously undermine the present framework of
protection and reverse the process of multilateralisation in the human rights field. 38
So, any claim for the normative enhancement of diplomatic assurances might lead to
overriding the existing protection regime. 39
From the above analysis, it is obvious that diplomatic assurances do not have
a standard content, and that a textual/content approach is also not conclusive with
regard to their normative status. 40 Not surprisingly, no clear answer to the
normativity question is given by state practice. There is a first category of States that
opt for non-bindingness. The United Kingdom, for example, submits that an MOU
36
See the view of the ECtHR in the Saadi case, op. cit., ??, at §147, that “the existence of domestic laws and
accession to international treaties guaranteeing respect for fundamental rights in principle are not in
themselves sufficient to ensure adequate protection against the risk of ill-treatment and also the comment
thereon, by de Londras, Fiona, Saadi v. Italy, 101 AJIL (2008), forthcoming.
37
See the analysis of the MOUs signed by the British government in Jones, Kate, op. cit., note ??, passim.
38
On the one hand, if an enhanced framework is established, that does not compensate for the fact of
substituting bilateral for multilateral institutionalised control. On the other hand, going beyond a repetition of
existing obligations might signify creating a less protective framework. See thus the cautious approach of the
CAT Committee, when it declared that “it is doubtful whether the value of assurances should be considered to
be increased simply because they include a reference to a state’s human rights obligations”, Ahmed Agiza and
Mohammed al-Zari v. Sweden, CAT Committee, UN Doc. CAT/C/34/D/233/2003, 24 May 2005, §12.23.
39
See the excellent analysis of the dilemma in Noll, Gregor, Diplomatic Assurances and the Silence of Human
Rights Law, 7 MELBOURNE JOURNAL OF INTERNATIONAL LAW (2006), σ. 104-126, passim.
40
See AS & DD (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289, judgement of 9 April
2008, §51.
8

including diplomatic assurances “records international “commitments”, but in a
form and with wording which expresses an intention that it is not to be legally
binding”. 41 The UK insists on the non-bindingness of MOUs despite the fact that
they are the most elaborate documents procuring diplomatic assurances, they are
carefully drafted and include treaty-like provisions (such as those on withdrawal). 42
It is worth noticing, however, that the United Kingdom has persistently considered
MOUs to be non-binding instruments. 43 Other countries’ stance vis-à-vis diplomatic
assurances is, however, more ambivalent. They speak about compliance with
assurances and they focus on their reliability, but they don’t clearly indicate what
the precise normative status of those promises is. Nevertheless, some governments
have clearly asserted in specific cases that diplomatic assurances are binding. 44
Turning to doctrine and the practice of IOs and human rights NGOs, we are
confronted with the same ambiguity concerning the normative quality of diplomatic
assurances. One strategy is to accept the possible adequacy of diplomatic assurances
in the context of the non-refoulement (and their obligatoriness) under specific
conditions, which are usually the following: (a) drafting the assurances in
unequivocal and binding language 45 , (b) providing for monitoring by competent and
independent authorities, and (c) allowing for remedial action before the deportation
and after the breach of the assurances 46 . By insisting on the two last elements,
41
See Treaties and MOUs. Guidance on Practice and Procedures, 2 nd edition, FCO, reproduced in 76 BYIL (2005),
pp. 703 et seq., at 704.
42
It seems that the United Kingdom tries to kill two birds with one stone. While the emphasis on the nonbindingness
of diplomatic assurances releases the UK from any responsibility stemming from the breach of
the assurances (providing remedies, resorting to countermeasures etc), the continuous analogy to treaties and
the similarities drawn between the two (the normativity question set aside) allow it to create a feeling that the
assurances do reduce the risk of torture in the non-refoulement test.
43
United States-United Kingdom Arbitration: Heathrow Airport User Charges, reproduced and commented in 88
AJIL (1994), pp. 738 et seq.; Aust, Anthony, The Theory and Practice of Informal International Instruments, 35 ICLQ
(1986), pp. 787-812, passim; Aust Anthony, Modern Treaty Law and Practice, 2007, Oxford, OUP, ??; McNeill,
John H., International Agreements: U.S.-UK Practice Concerning the Memorandum of Understanding, 88 AJIL (1994),
pp. 821-826; Jones, Kate, op. cit., note ??, at 188: “while the MOUs reflect the express political commitment of
the States concerned, they are not legally binding”.
44
See Al-Moayad v. Germany, ECtHR, Application No. 35865/03, decision as to the admissibility of 20 February
2007, §§ 69, where the Court adheres to the argument put forward by the German government that “the
German authorities have obtained an assurance, which is binding under public international law...”; Ahmad v
United States of America; Aswat v United States of America, 30 November 2006, 77 BYIL (2006), pp. 547 et seq.
45
Report of the Special Rapporteur on Torture and Other Cruel or Degrading Treatment or Punishment (Theo van
Boven), UN Doc. A/57/173, 2 July 2002, §35 (: appealing to all States to ensure that the receiving State has
provided an unequivocal guarantee to the extraditing authorities); UNHCR Note on Diplomatic Assurances and
International Refugee Protection, August 2006, available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/
rwmain/opendocpdf.pdf?docid=44dc81164, §21; Opinion on the International Legal Obligations of Council of
Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport of Prisoners, European
Commission for Democracy Through Law (Venice Commission), Council of Europe, Opinion no. 363/2005,
CDL-AD(2006)009, 17 March 2006, §141 (: the terms of the diplomatic assurances need to be unequivocal...and
need to reflect the scope of the obligation by which the State which issues them is legally bound), emphasis
added.
46
Report of the Special Rapporteur on Torture and Other Cruel or Degrading Treatment or Punishment (Theo van
9

international lawyers try to reproduce a specific model of normativity, one that
considers a third party monitoring mechanism and a clear enforcement framework
permitting remedial action in case of breach as indispensable parts of obligatoriness.
The second strategy is to plainly consider diplomatic assurances as nonbinding.
47 Human rights, it is said, are not amenable to the weak processes of
diplomatic negotiations and their implementation should not depend on trust, good
faith or honour as is the case with diplomatic assurances. 48 Moreover, the absence of
enforcement or sanctioning provisions attached to the assurances is repeatedly
underlined. Consequently, we see that the same narrative about normativity is
followed by the exponents of non-bindingness. But unless we adhere to a strictly
Austinian view with regard to international law 49 , this narrative does not correspond
to the reality of the international legal order. As Professor Réné-Jean Dupuy had
stressed « l’inexistence de sanctions de type critique ne doit pas faire conclure à
l’absence de règles juridiques. Les deux plans normatifs et coercitifs ne se
confondent pas ». 50 Moreover, the claim for monitoring and enforcement/sanction
provisions represents a logic of self-containment 51 , as if general international law
cannot provide a fall-back option that could accommodate human rights concerns 52 ,
Boven), ibid., §§ 30 and 40; European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT), 15 th General Report on the CPT’s activities, Council of Europe, CPT/Inf (2005)
17, 22 September 2005, §40; Concluding Observations on the Fifth Periodic Report of Sweden, UN Doc.
CCPR/C/74/SWE, 24 April 2002, §12.
47
See Report of the Special Rapporteur on Torture and Other Cruel or Degrading Treatment or Punishment (Manfred
Nowak), UN Doc. A/60/316, 30 August 2005, § 51 (: diplomatic assurances are not legally binding); Torture Can
Never, Ever Be Accepted, viewpoints of Thomas Hammarberg, Commissioner for Human Rights, Council of
Europe, 27 June 2006, available at http://www.coe.int/t/commissioner/Viewpoints/060626_en.asp (: the
principle of non-refoulement should not be undermined by convenient, non-binding promises of such kind);
Arbour, Louise, op. cit., note ??, at 522 (: it is difficult to make a case that if a Government does not comply with
binding law it will respect legally non-binding bilateral agreements); UNHCR Note on Diplomatic Assurances
and International Refugee Protection, op. cit., §5 (: diplomatic assurances...do not normally constitute legally
binding undertakings), emphasis added.
48
See Agiza v. Sweden, op. cit, note ??, §11.15; Walker, Clive, op. cit., note ??, at 446.
49
See John Austin, LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW (1885) 5 , vol. I, at 182. John
Austin denied an obligatory force to the legal rules of the international system, since, in his view, law consisted
of “commands emanating from a sovereign who enjoys habitual obedience from the bulk of a given society”.
Since international law lacked a centralised authority having the power of commanding and enforcing, there
could be no legal system. See the analysis of van Hoof (1983), at 36.
50
Dupuy, René-Jean, Droit déclaratoire et droit programmatoire: De la coutume sauvage à la "soft law", in
L'ÉLABORATION DU DROIT INTERNATIONAL PUBLIC, SOCIÉTÉ FRANÇAISE POUR LE DROIT INTERNATIONAL: COLLOQUE
DE TOULOUSE, 1974, Paris, Pedone, pp. 132-148, at 147 ; contra Fawcett, J. E. S., The Legal Character of International
Agreements, 30 BYIL (1953), pp. 381-400, at 386 et seq. See also Klabbers, Jan, Informal Agreements in International
Law: Towards a Theoretical Framework, 5 FINNISH YEARBOOK OF INTERNATIONAL LAW (1994), σ. 267-387, at 350.
51
See UK Compliance with the UN Convention Against Torture, Joint Committe on Human Rights, Liberty and
JUSTICE Joint Submission, September 2005, available at http://www.justice.org.uk/images/pdfs/
uncatsept05.pdf, at §20 (: In an event, we note that the memorandum concluded with Jordan procides no
mechanism for enforcement of its terms...In short, there is no mechanism by which the UK government can
enforce Jordan’s obligations under the memorandum in the event that its terms are breached).
52
See the observations of Simma, Bruno, Self-contained Regimes, 16 NYIL (1985), pp. 111-136, at 129 et seq. It is
true however, that the incentive for enforcing the agreement in the event of a breach is rather low for the
10

and fragments the normativity paradigm. 53 One can, thus, easily observe the
ambiguities and inconsistencies in the way international organisations and doctrine
alike 54 conceive the normative question with regard to diplomatic assurances.
The inconclusiveness of the international community’s response to
diplomatic assurances is all the more evident in the way international and domestic
tribunals deal with the question of normativity. Before examining the relevant caselaw,
a caveat might be useful. It has been persuasively argued 55 that judicial
instances, when faced with an instrument of dubious normative nature, have the
tendency to recast it into clear-cut legal language, into hard law. This is
understandable, since more than anyone else judges are required to interpret every
phenomenon through the legal prism. 56
Having clarified that point, the attitude of international and domestic judicial
instances towards diplomatic assurances against torture is incoherent. On the one
hand, several judges have pronounced favourably on the question of diplomatic
assurances’ obligatoriness. Both domestic and international tribunals have explicitly
described assurances as having a binding nature. 57 It has been argued, however, that
these pronouncements concerned diplomatic assurances against the imposition of
death penalty, which differ crucially from those against torture. Assurances against
death penalty, so the argument goes, are binding because the practice of death
penalty is not illegal in the receiving State and therefore it is not surrounded by
secrecy. Consequently, the implementation of these assurances can be easily
controlled by the officials of the State of return and monitored by the sending State. 58
sending State and that possible venues for an individual to assert its rights are limited; Noll, Gregor, op. cit.,
note ??, at 119-123; see also “Empty Promises:” Diplomatic Assurances No Safeguard for Torture, Human Rights
Watch, available at http://hrw.org/reports/2004/un0404/diplomatic0404.pdf, at 5.
53
See, Klabbers, Jan, Reflections on Soft International Law in a Privatized World, available at
www.helsinki.fi/eci/Publications/JKSoft_law_and_public.pdf.
54
See, for example, Jones, Martin, Lies, Damned Lies and Diplomatic Assurances: The Misuse of Diplomatic
Assurances in Removal Proceedings, 8 EUROPEAN JOURNAL OF MIGRATION AND LAW (2006), pp. 9-39, speaking
about the paucity of remedies; Larsaeus, Nina, The Use of Diplomatic Assurances in the Prevention of Prohibited
Treatment, RSC Working Paper No. 32, October 2006.
55
Klabbers, Jan, The Redundancy of Soft Law, 65 NORDIC JOURNAL OF INTERNATIONAL LAW (1996), pp. 167-182, at
172 et seq.; Klabbers, Jan, An Introduction to International Institutional Law, 2002, Cambridge, CUP, at 340.
56
Cite Fouad.
57
Al-M. case, 2 BvR 1506/03, Constitutional Court of Germany (Bundesverfassungsgericht), order of the
Second Senate of 5 November 2003, available at http://www.bundesverfassungsgericht.de/entscheidungen/
rs20031105_2bvr150603en.html, §§21 and 76 (: The court stated that the reservations concerning the possible
danger of torture had been removed by the assurance given by the United States, which was binding under
international law); the decision was upheld – also in that point - by the ECtHR, Al-Moayad v. Germany, op. cit.,
note ??, §69; see also Abu Salem v. Portugal, op. cit. Note ??, at 6 (:de telles assurances sont valuables et
contraignants dans le cadre du respect du droit international).
58
See Suresh v. Minister of Citizenship and Immigration and Attorney General of Canada, judgment of 11 January
2002, [2002] SCR 3, §§ 124. For a summary of the argument, see Nowak, Manfred and McArthur, Elizabeth, op.
cit., note ??, at 217; Evans, Malcolm D., ‘All the Perfumes of Arabia’: The House of Lords and ‘Foreign Torture
Evidence’, 19 LJIL (2006), σ. 1125-1144, at 1126; Walker, Clive, op. cit., note ??, at 443; Opinion on the International
11

Various objections can be raised against this distinction. Apart from the fact
that secrecy remains a serious concern in death penalty cases 59 and that domestic
courts have pronounced on the bindingness of diplomatic assurances also in cases
involving a risk of torture 60 , we are mainly concerned with the essence of the above
argument, namely that the normative quality of diplomatic assurances can be
contextually determined, or, to say it simply, that the same type of promise might be
binding in one occasion and non-binding in another. Moreover, this disquieting idea
of “contextual normativity” reflects a double standard attitude. It is not a
coincidence that tribunals accept – and declare binding – diplomatic assurances
issued by the United States 61 , while having a much more hesitant attitude towards
diplomatic assurances issued by states like Egypt or Syria. In this latter case the once
binding engagements are magically described as mere pledges included in lowerlevel
instruments, which lack mechanisms for their enforcement and whose breach
just deceives the confidence placed upon them by the procuring State. 62 Ultimately,
judges are forced to return to the same ambiguous strategy of avoiding determining
diplomatic assurances’ normativity while using legal language when analysing their
position in the non-refoulement test.
What conclusions can we draw from the review of the practice of the various
international actors with regard to the normative quality of diplomatic assurances?
One is struck by the way the normative question is shaped. Views on assurances’
normativity range from clear bindingness to non-bindingenss lock, stock and barrel.
In between the ends of the law/non-law spectrum nuanced language is used, which
nevertheless reveals a rigid vision on normativity (focus on enforcement and
sanctions). It is our view that the inconsistencies in reasoning are due to the effort to
Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities and Inter-State Transport
of Prisoners, op. cit., note ??, §140.
59
See Secrecy Surrounds Death Penalty, Amnesty International, 15 April 2008, available at
http://www.amnesty.org/en/news-and-updates/report/secrecy-surrounds-death-penalty-20080415.
60
Babar Ahmad and Haroon Rashid Aswat v. The Government of the United States of America, High Court of Justice,
Queen’s Bench Division, Divisional Court, [2006] EWHC 2927 (Admin), 30 November 2006 (concerning
assurances against death penalty, prosecution before a military commission, characterisation as enemy
combatant and transfer in Guantanamo), where the Court noted that “[I]nternational law recognizes the use of
Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law
such a Note is regarded as binding on the State that issues it” (§58), though later the judge describes the breach
of the assurance as “a breach of trust (and I think of their legal obligations)” (§90).
61
The pompous assertion that the United States is “a civilised country, respecting the rule of law...[and] a major
democracy” (Mustafa Kamel Mustafa (Otherwise Abu Hamza) v. The Government of the United States of America,
Secretary of State for the Home Department, High Court of Justice, Queen’s Bench Division, Administrative Court,
[2008] EWHC 1357 (Admin), §61), recalls other epochs or highly contestable international law theories; see the
observations of Koskenniemi, Martti, International Law in Europe: Between Tradition and Renewal, 16 EJIL (2005),
pp. 113-124, passim.
62
See Agiza v. Sweden, op. cit, note ??, §13.4; MT (Algeria) & Ors v Secretary of State for the Home Department [2007]
EWCA Civ 808 (30 July 2007), §126.
12

manipulate the normativity question for other purposes. Playing down the
normative quality of diplomatic assurances helps human rightists 63 argue that their
influence to risk assessment in the non-refoulement test is minimal. But at the same
time, their worry about the person involved in the deportation leads them to insist
on a “hardening” of the assurances to such extent that these assurances ultimately
become indistinguishable from hard law. On the contrary, States that strategically
asserted the bindingness of diplomatic assurances against death penalty in order to
bolster the conformity of extradition procedures, find themselves today forced to
radically change their position in order to avoid accountability in case of breach of
those insufficient assurances, while maintaining that the assurances effectively
reduce the risk of torture.
One may feel, however, that there is something missing in the above analysis
of the normativity question. And indeed there is one shade in the normative
spectrum that has not been directly put forward with regard to diplomatic
assurances by either side. This is the soft law thesis – in its broadest sense as we will
explain in the following part. It is our view that the reason for not invoking soft law
may be traced back to the way the normative discourse has been shaped in the case
of soft law. Consequently, it is now necessary to examine these normative narratives
in order to illustrate why recasting diplomatic assurances in terms of soft law is
impossible.
III. Diplomatic Assurances as Soft Law?
The phenomenon of soft law has emerged as a necessity in order to cover the
area between legal and moral/political undertakings. 64 Soft law “denotes those
instruments which are to be considered as giving rise to legal effects, but do not (or
not yet perhaps) amount to real law”. 65 Various phenomena have been qualified as
falling within the scope of soft law. Soft law ranges from treaties providing for
aspirational norms or political promises – that is soft obligations, 66 to informal
instruments including precise obligations and resolutions and codes of conduct
63
It is Professor Alain Pellet that coined this expression; see Alain Pellet, Human Rightism and International Law,
10 ITALIAN YEARBOOK OF INTERNATIONAL LAW (2001), pp. 3-16.
64
Tammes, A.J.P., Soft Law, in ESSAYS OF INTERNATIONAL & COMPARATIVE LAW IN HONOUR OF JUDGE ERADES,
1983, The Hague, Nijhoff, pp. 187-195.
65
Klabbers, Jan, The Redundancy of Soft Law, op. cit., note ??, at 168.
66
Sztucki, Jerzy, Reflections on International "Soft Law", in FESTSKRIFT TILL LARS HJERNER. STUDIES IN
INTERNATIONAL LAW, 1990, Norstedts, pp. 549-575, at 551. In this case, the rules usually consist of vague goals
to be achieved in the future or general guidelines rather than prescriptive rules and strict obligations; see
Dupuy, Pierre-Marie, Soft Law and the International Law of the Environment, 12 MICHIGAN JOURNAL OF
INTERNATIONAL LAW (1990-1991), pp. 420-435, at 428; Rosenne, Shabtai, DEVELOPMENTS IN THE LAW OF
TREATIES: 1945-1986 (1989), Cambridge, CUP.
13

drafted and adopted in the framework of international organizations. 67 Thus, it is
easily understood that soft law in its broadest sense covers disparate phenomena
with little in common.
What is indeed the common thread between these situations is the need for
accommodating law’s dynamism when the traditional sources of international law
are unable. Soft law allegedly contributes to the expediency of the “law-making”
process because of its lack of formality, which means that lengthy ratification
procedures are avoided 68 , and its flexibility in evolution, which is primarily reflected
in the simple procedures on amendment and termination 69 . Consequently, soft law
can better follow the pace of technological advancement and enhance cooperation
through its plasticity and its ability to reflect the diversity of the international legal
order. 70
Nevertheless, the advantages of soft law should not be overstated. Apart
from the fact that the importance of soft law has sometimes led to complex and
lengthy negotiations that minimize the expediency and flexibility effect 71 , the
strengthening of law’s responsiveness to the social context takes place at the expense
of law’s objectivism, which is the cornerstone of liberal legal theory. In other words,
the theoretical conundrum between objectivism and subjectivism/particularism is
accentuated in the case of soft law. 72 At first, the liberal project constructed the
67
Some authors suggest that gentlemen’s agreement should also be considered part of soft law; see the
observations of Eisemann, Pierre-Michel, Le Gentlemen’s agreement comme source du droit international, 106 JDI
(1979), pp. 326-348. These agreements are binding in honour only and are strongly linked to the person having
reached them. It should be noted that the view that they constitute personal undertakings that do not bind the
State as such has been now abandoned. Lord McNair described as following the gentlemen’s agreements (:
Frequently heads of states or duly empowered ministers concur in making declarations of policy, which they
regard as morally and politically binding but which do not create legal obligations between States”, McNair,
Arnold, THE LAW OF TREATIES, 1961, Oxford, Clarendon Press, at 6. Diplomatic assurances are also
characterised by a strong personal element, in that sometimes importance is placed on the person providing
them.
68
See Boyle, Alan, Some Reflections on the Relationship of Treaties and Soft Law, 48 ICLQ (1999), pp. 901-913, at 903.
This does not seem to be the case concerning treaties with soft content. In any case, the absence of ratification
processes may lead to reduced public scrutiny, thus, challenging some of the premises of the rule of law; see
Klabbers, Jan, The Undesirability of Soft Law, 67 NJIL (1998), pp. 381-391, at 391
69
See Shelton, Dinah, Normative Hierarchy in International Law, 100 AJIL (2006), pp. 291-323, at 322; Reichard,
Martin, Some Legal Issues Concerning the EU-NATO Berlin Plus Agreement, 73 NJIL (2004), pp. 37-67, at 62;
Neuhold, Hanspeter, The Inadequacy of Law-Making by International Treaties: “Soft Law” as an Alternative?, in
Rüdiger Wolfrum/Volker Röben (eds.), DEVELOPMENTS OF INTERNATIONAL LAW IN TREATY MAKING (2005),
Berlin: Springer, pp. 39-52, at 50-51.
70
See Christine Chinkin, Normative Development in the International Legal System, in Dinah Shelton (ed.),
COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM
(2000), London: Oxford University Press, pp. 21-42, at 42; Sztucki, Jerzy, op. cit., note ??, at 558.
71
Dupuy, Pierre-Marie, Soft Law and the International Law of the Environment, 12 MICHIGAN JOURNAL OF
INTERNATIONAL LAW (1990-1991), pp. 420-435, at 429; Chinkin, Christine, The Challenge of Soft Law: Development
and Change in International Law, 38 ICLQ (1989), pp. 850-866.
72
Koskenniemi, Martti, The Fate of Public International Law: Between Technique and Politics, 70 MODERN LAW
REVIEW (2007), pp. 1-30.
14

sources doctrine in order to insulate law from external influences. That way, law’s
objectivism could be forcefully defended. The rigidity, however, with which the
sources doctrine was dealt, rendered law unresponsive to societal permutations. 73
The soft law thesis seems to fill this gap though at the expense of objectivism, since it
seems to reflect too close State practice, making law a means of apology. 74 In
addition to this, soft law is much more dependent on State intention, because
logically it is intention that distinguishes soft law from hard or non-law. While in the
case of treaties the existence of a formalized framework simplifies the work of a
lawyer in distilling the legal from the non-legal, soft law due to its informal nature is
heavily based on intention. In order to balance these traits, international lawyers try
to breathe objectivity to soft law by returning to a logic of formalism. 75
Different answers, opposing form to volonté, have been given to the question
about which acts are such as to establish binding relations under international law.
While most scholars vehemently defend the view that the non-binding nature of an
instrument should be determined on the basis of the existence or not of an intention
to be bound regardless of the form 76 , some scholars suggest that it is the absence of a
specific form that leads to softness. According to this view, a specific form bestows
bindingness to an instrument. 77 For example, Boyle and Chinkin speak of the form of
a non-binding agreement. 78 But one wonders what is meant with that, since we
know very well that there is no standard form for treaties, let alone for the broader
category of binding agreements. 79 Some others, while theoretically placing consent at
73
See, for exemple, the debate on the way law should accommodate the idea of humanitarian intervention;
Simma, Bruno, “NATO, the UN and the Use of Force: Legal Aspects”, 10 EJIL (1999), pp. 1-22; Cassese,
Antonio, “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian
Countermeasures in the World Community?”, 10 EJIL (1999), pp. 23-31; Koskenniemi, Martti, 'The Lady Doth
Protest Too Much'. Kosovo, and the Turn to Ethics in International Law", 65 Modern Law Review (2002), pp.
159-175.
74
For the idea of apology, see Koskenniemi, Martti, The Politics of International Law, 1 EJIL (1990), pp. 1-32.
75
See Unger, Roberto Mangabeira, THE CRITICAL LEGAL STUDIES MOVEMENT (1986), Cambridge Mass.: Harvard
University Press, at 86.
76
See, among others, Rosenne, Shabtai, DEVELOPMENTS IN THE LAW OF TREATIES: 1945-1986 (1989), Cambridge:
Cambridge University Press, at 86; Fitzmaurice, Malgosia The Identification and Character of Treaties and Treaty
Obligations between States in International Law, 73 BYIL (2002), pp. 141-185, at 165: “The crucial element in
distinguishing between formal and informal instruments is the element of intention”; Virally, Michel, Sur la
notion d’accord, in Von Emanuel Diez, Jean Monnier et al. (eds.), FESTSCHRIFT FÜR RUDOLF BINDSCHEDLER: ZUM
65. GEBURTSTAG AM 8. JULI 1980, 1980, Bern: Stämpfli, pp. 159-172, at 172; Widdows, Kelvin, What Is an
Agreement in International Law?, 50 BYIL (1979), pp. 117-149, at 121. Contra Klabbers, Jan, THE CONCEPT OF
TREATY IN INTERNATIONAL LAW, 1996, The Hague: Kluwer Law International, at 13, where he claims that when
the external form of a document provides reasons to regard it as a treaty, the question arises how it would be
possible that the signatories do not intend to be a treaty.
77
In the same vein, some authors claim that treaties providing for soft obligations cannot be considered part of
soft law, since treaties are always binding, thus stressing the importance of form for bindingness; see Boyle,
Alan, ibid., at 901; Klabbers, Jan, The Redundancy of Soft Law, op. cit., note ??, at 172.
78
Boyle, Alan, Chinkin, Christine, THE MAKING OF INTERNATIONAL LAW, 2007, Oxford, OUP, at 213.
79
Chailley, Pierre, LA NATURE JURIDIQUE DES TRAITES INTERNATIONAUX (1932), Paris, Sirey, at 5 ( : la pratique
nous enseigne, en effet, que les traités peuvent être conclus…dans les formes les plus souples). Contra Aust,
15

the heart of their argument, immediately relativize its importance by stating, for
example, that “intentions must be implied from the fact of the formality of the
instrument” 80 .
In the same vein, and since the form should not be the criterion for
distinguishing between soft and hard law 81 , some scholars draw a process by which
social and moral imperatives can be transformed to (soft-hard) law. In this case,
process bestows normativity and the search for the parties’ intention is supposedly
streamlined. Intention is deduced from the language employed, the circumstances of
the “agreement” and the subsequent action of the parties. 82 In this case, the element
of intention ends up being exclusively constructed through apparent or external
facts 83 – through objective facts. But what is considered objective is no more than a
chimera. This objective construction collapses as soon as a disagreement appears
between the parties. Immediately a dilemma is shaped between accepting the
allegations of one side and having recourse to an external criterion, thus forming a
(constructive) intent of the parties through interpretation. 84
But this method based on external elements has nothing objective as Stanley
Fish has repeatedly stressed. On the contrary, it proves the importance of the context
against which formalism has been elicited in the first place. 85 Consequently, the soft
law thesis highlights and even accentuates the form/intention or more abstractly the
objective/subjective oscillation in international legal discourse and the inherent
weaknesses of international law’s formalism. In this respect, the effort to characterize
diplomatic assurances as soft law cannot find support among human rightists due to
their pretension for the foundational and objective character of human rights, which
are detached from State will and inherent to human dignity. 86
The view that soft law constitutes a cacophony in the sources doctrine is
further confirmed by the fact that it defies the on/off ideal concerning law’s
bindingness. While the idea of a normative threshold meant that there was an
Anthony, The Theory and Practice of Informal International Instruments, 35 ICLQ (1986), pp. 787-812, at 809
(suggesting that an exchange of declarations is a strong evidence for the bindingness of an agreement).
80
This was the technique followed by Hersch Lauterpacht in the ILC; see also Aust, Anthony, op. cit., note ??,
at 787 and 794 and 800 (presuming the content of intention in case of informal instruments).
81
Kennedy, Duncan, Legal Formality, 2 JOURNAL OF LEGAL STUDIES (1973), pp. 351-398, at 369.
82
Chinkin, Christine, op. cit., note ??, at 37 et seq.; Dupuy, Pierre-Marie, op. cit., note ??, at 430; Koh, Harold
Hongju, How Is International Human Rights Law Enforced?, 74 INDIANALJ (1999), pp. 1397-1417, at 1409-1410.
83
Fitzmaurice, Malgosia, op. cit., note ??, at 145
84
See the brilliant analysis of Koskenniemi, Martti, FROM APOLOGY TO UTOPIA. THE STRUCTURE OF
INTERNATIONAL LEGAL ARGUMENT [1989] (2005), Cambridge, CUP, at 176 (footnote 48); Klabbers, Jan, Informal
Agreements, op. cit., note ??, at 305.
85
Fish, Stanley, The Law Wishes to Have a Formal Existence, in THERE’S NO SUCH THING AS FREE SPEECH AND IT’S A
GOOD THING, Too, 1994, Oxford, OUP, pp. 141-179, passim; Fish Stanley, op. cit., note ??, at 1-10 and 342-355.
86
See the observations of Koskenniemi, Martii, The Effect of Rights..., op. cit., note ??. at 109-110.
16

either/or answer to the question of bindingness 87 , the admission of the soft law
thesis transforms normativity into a matter of degree. While normativity becomes
more responsive to social changes, the ensuing phenomenon is to achieve “justice at
the price of legal certainty” 88 . This is why a few international scholars have sharply
attacked the soft law thesis. Professor Klabbers, for example, has persistently argued
that this thesis “attempts to create so much subtlety that we can no longer handle
it” 89 , while others have persistently pleaded for a binary approach and have referred
to state practice in order to substantiate their argument. 90
It is our opinion that the soft law phenomenon is an expression of the
“survival instinct” of international lawyers, of their agony to always defend
international law’s pertinence. Since the international legal discourse is increasingly
coming under external (social, moral, political) attacks, it has tried to re-invent itself
and resist these attacks through the theory of soft law. 91 This explanation sets the
background against which we can better analyze the two narratives on the basis of
which the soft law thesis has been received in international law. We strongly believe
that it is only upon this understanding that the soft law narrative developed and
nowadays enjoys a wide popularity among international legal scholars. And this
narrative also explains why diplomatic assurances cannot be presented as soft law.
The first idea permeating the soft law thesis is that of normative expansion.
Soft law has been welcomed by legal scholars only because it was envisaged as a
step in the process of norm hardening, as part of the legalization project. From
George Abi-Saab’s assertion that the role of soft law is to expand the empire of law 92 ,
to Réné-Jean Dupuy, who declared in his seminal article on droit déclaratoire and droit
programmatoire that soft law was a notion “evocative de ce transit…[d’une] maturité
insuffisant de la règle du droit” 93 , and from Dinah Shelton’s view that soft law is
« used most frequently either as a precursor to hard law or as a supplement to a hard-
87
See Weil, Prosper, Towards Relative Normativity, 77 AJIL (1983), pp. 413-442, at 416.
88
Koskenniemi, Martii, Introduction, in Koskenniemi, Martii (ed.), SOURCES OF INTERNATIONAL LAW, 2000,
Aldershot: Ashgate, pp. xi-xxviii, at xxiii.
89
Klabbers, Jan, The Undesirability..., op. cit., note ??, at 387.
90
See Sztucki, Jerzyk, Reflections, op. cit., note ??, at 551; Shelton, Dinah, Normative Hierarchy, op. cit., note ??, at
321; Raustiala, Kal, Form and Substance in International Agreements, 99 AJIL (2005), pp. 581-614, at 583-586
(distinguishing between law and pledges and submitting that what is soft law has nothing to do with legality).
91
This argument draws inspiration from Oren Perez, Law in the Air: A Prologue to the World of Legal Paradoxes, in
Oren Perez et al. (eds.), PARADOXES AND INCONSISTENCIES IN THE LAW (2006), Oxford: Hart, pp. 1-37.
92
Abi-Saab, Georges, Eloge du "droit assourdi". Quelques réflexions sur le rôle de la soft law en droit international
contemporain, in NOUVEAUX ITINÉRAIRES EN DROIT: HOMAGE À FRANÇOIS RIGAUX, 1993, Bruxelles, Bruylant, pp.
59-68, at 64 ( : son rôle propre est par conséquent d’étendre l’empire du droit), emphasis added.
93
Dupuy, René-Jean, Droit déclaratoire et droit programmatoire: De la coutume sauvage à la "soft law", in
L'ÉLABORATION DU DROIT INTERNATIONAL PUBLIC, SOCIÉTÉ FRANÇAISE POUR LE DROIT INTERNATIONAL: COLLOQUE
DE TOULOUSE, 1974, Paris, Pedone, pp. 132-148, at 139-140.
17

law instrument » 94 , to Douglas Johnston’s description of soft law “as juridically
significant instrument that should be perceived as playing an early…role in the
development of international law” 95 , analyses of the soft law thesis abound with
declarations that soft law reflects a “stage in the process of formation of legal
norms” 96 .
This concept of normative expansion through soft law has been materialized
by using the legalization model. More precisely, international lawyers, wary of the
risk to instinctively see hard law where there is only soft one, have focused on the
distinction between legal bindingness and legal scope and have argued that soft law
is not binding but, nevertheless, has legal effects. 97 Soft law, so the argument goes,
has a legal scope since it creates legal expectations that the promise/commitment
will be valued. 98 Consequently, inter partes behavior in conformity with soft law
pledges cannot be considered as violating international law. And the slippery slope
towards a hard approach to soft law continues. Some international scholars, for
example, put forward the principle of good faith and submit that legal consequences
(obligations) stem from that principle 99 , while others speak about estoppel, lawmaking
intention, normative significance and so on, when they elaborate on the soft
law thesis. 100 Therefore, it comes as no surprise that a certain Alan Boyle concludes
that soft law instruments are not fundamentally different from multilateral treaties
and a failure to comply with them might amount to a violation of international law
94
Shelton, Dinah, Normative Hierarchy, op. cit., note ??, at 320, emphasis added.
95
Johnston, Douglas M., The Heritage of Political Thought in International Law, in R. St. J. Macdonald/ Douglas
M. Johnston (eds.), THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY,
DOCTRINE AND THEORY (1983), The Hague: Martinus Nijhoff, pp. 179-225, at 224.
96
Sztucki, Jerzyk, op. cit., note ??, at 573; see also Boyle, Alan & Chinkin, Christine, op. cit., note ??, at 216 (citing
the example of resolutions by MEAs (soft law), which then are translated into amendments to Protocols, when
consensus grows); Dupuy, Pierre-Marie, op. cit., note ??, at 420 (describing soft law as part of the contemporary
law-making process); Eisemann, Pierre-Michel, op. cit., note ??, at 339 (speaking of pre-law).
97
See the laborious analysis of Wellens, Karel, C., and Borchardt, Guus, M., Soft Law in European Community
Law, 14 ELR (1989), pp. 267-321, at 269 and 273-274; see also Monaco, Ricardo, Accords internationaux non
obligatoires et effets juridiques préliminaires, in Karle-Heinz Böckstiegel et al. (eds.), VÖLKERRECHT, RECHT DER
INTERNATIONALES ORGANISATIONEN, WELTWIRTSCHAFTSRECHT: FESTSCHRIFT FÜR IGNAZ SEIDL-
HOHENVELDERN/LAW OF NATIONS, LAW OF INTERNATIONAL ORGANIZATIONS, WORLD’S ECONOMIC LAW: LIBER
AMICORUM HONOURING IGNAZ SEIDL-HOHENVELDERN (1988), Köln: Carl Heymanns, pp. 383-402, at 392-393.
98
Shelton, Dinah, Law, Non-Law and the Problem of ‘Soft Law’, in Dinah Shelton (ed.), COMMITMENT AND
COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM (2000), London: Oxford
University Press, pp. 1-20, at 11; Fitzmaurice, Malgosia, op. cit., note ??, at 182; Bothe, Michael, Legal and Nonlegal
Norms - A Meaningful Distinction in International Relations?, 11 NYIL (1980), pp. 65-95, at 95.
99
See Rosenne, Shabtai, Developments..., op. cit., note ??, at 93-94 and 104; Aust, Anthony, op. cit., note ??, at 808;
Sztucki, Jerzy, op. cit., note ??, at 560 (: the principle of good faith...is valid in international relations of both legal
and non-legal character, and...may have legal consequences even when the underlying agreement is of non-legal
character), emphasis added. But see Klabbers’ objection that good faith cannot be in itself a source of obligation
where none would otherwise exist; see Klabbers, Jan, The Concept, op. cit., note ??, at 130; Bother, Michael, op.
cit., note ??, at 95.
100
See Aust, Anthony, ibid., at 810 (estoppels); Boyle, Alan, Some Reflections, op. cit., note ??, at 902.
18

lock, stock and barrel. 101
Apart from the apparent inconsistency between the initial differentiation of
soft from hard law and the subsequent (partial) equation of the two, this turn to a
justice-based view (i.e. good faith) is no less subjective than consensualism, in the
sense that we now focus on the impact a pledge has on others. As Professor
Koskenniemi has eloquently argued, “a justice-based view leads into the impasse of
the indeterminacy of the concept of ‘justice’ and to the difficulty of explaining why
our construction of it would be capable of overriding [a] differing construction” 102 .
In order to remedy soft law’s indeterminacy, international scholars and judges alike
– as we have observed in the case of diplomatic assurances – insist that
enforcement/settlement of disputes provisions accompany a soft law instrument. 103
Moreover, these mechanisms should provide for third party involvement, making
clear that auto-interpretation cannot do away with the risk of subjectivism. 104 In the
end, linking hard responsibility and hard sanctions to a soft law instrument might
eliminate the difference between hard and soft law. 105
The model of legalization shows the imaginative paucity of international
lawyers. It can be explained by a “kind of deviation professionnelle of jurists inclined to
see every social phenomenon, especially one characterized by regulatory purport in
“law-related” terms”. 106 This model also highlights the blind commitment of
international scholars to the international legal cause. 107 Their attitude towards soft
law illustrates their tendency to consider a soft agreement better than no agreement
at all. 108 International scholars have been so much persuaded by the positive
normative image of soft law – as a precursor of hard law – that some of them even
end up suggesting that « the adoption of soft law reflects a great deal of respect for
international law on the part of States ». 109 The objection that soft law might be a
consecration of serious disagreements between States is summarily brushed aside.
101
Boyle, Alan, op. cit., note ??, at 902 and 905.
102
Koskenniemi, Martii, Introduction, op. cit., note ??, at xiv.
103
See Widdows, Kelvin, op. cit., note ??, at 122 and 130, and the observations of Aust, Anthony, op. cit., note ??,
at 802.
104
See Cheng, Bin, Flight from Justiciable to Auto-Interpretative International Law: From Jay Treaty to the Schultz
Letter, in LIBER AMICORUM ELIE VAN BOGERT, 1985, Antwerpen, Kluwer, pp. 2-18; Fawcett, J.E.S., op. cit., note ??,
at 391; Aust, Anthony, ibid., at 791 (suggesting that a provision for negotiation in case of disagreement is a
strong indication against bindingness); and see the critical comment by Zarbiev, Fouad, Les politiques des vérités
juridiques en droit international. Propos autour d’une controverse interjuridictionnelle, 16 FYIL (2007), forthcoming,
who submits that the impartiality of judicial bodies is greatly exaggerated.
105
Klabbers, Jan, Redundancy, op. cit., note ??, at 169.
106
Sztucki, Jerzy, op. cit., note ??, at 573.
107
See our analysis in p. ??.
108
See Hillgenberg, Hartmut, A Fresh Look at Soft Law, 10 EJIL (1999), pp. 499-515, at 501, and the observations
of Klabbers, Jan, Undesirability, op. cit., note ??, at 383.
109
Gruchalla - Wesierski, Tadeusz, A Framework for Understanding "Soft Law", 30 MCGILL LAW JOURNAL (1984),
19

And the possibility of soft law signifying a reversal in legal expansion, a sign of legal
retrogression, is rarely considered. 110
But this is exactly what happens in the case of diplomatic assurances against
torture. On the one hand, the constant legalization of the debate concerning their
nature and function weakens rather than clarifies the argumentative line of human
rights lawyers, as we have seen. On the other hand, diplomatic assurances represent
precisely what soft law exponents tend to forget, namely that a theoretical
construction can be turned to its head by being used for exactly the opposite
purposes. Here the paradigm of normative expansion is reversed and human rights
law finds itself obliged to fight against a thesis that helped human rights emerge in
the first place. 111
There is, however, another, equally important, element which explains why
the soft law thesis cannot be the discoursive framework for diplomatic assurances.
This second common thread of soft law analyses is the link between soft law and
communitarian/institutional ideas. It is argued that as membership in the
international legal order expands and problems require multilateral solutions, States
find themselves obliged to hold negotiations with an increasing number of
participant States and to seek universal solutions for global problems. The ensuing
phenomenon is a watering down of the language of commitments so that States can
agree to the least common denominator. 112 So far, so good. But then international
lawyers attempt to prove that soft law is the representative par excellence of
communitarization. Réné-Jean Dupuy, for example, juxtaposed the egoistical nature
of positivism with the realization of a communitarian project as expressed by soft
law. 113
In addition to this, many scholars suggest that the communitarian allure of
soft law directly impacts on the normative process. According to this view, this
process is accelerated – not to say achieved – by the simple fact of soft law’s
pp. 37-88, at 40.
110
See Weil, Prosper, op. cit., note ??, at 416; Judge Manfred Lachs, The Threshold in Law-Making, in Bernhardt,
Rudolf et al. (eds.), VÖLKERRECHT ALS RECHTSORDNUNG, INTERNATIONALE GERICHTSBARKEIT, MENSCHENRECHTE:
FESTSCHRIFT FÜR HERMANN MOSLER, 1983, Berlin, Springer-Verlag, pp. 493-501, at 500, while identifying the
possibility of the soft law thesis weakening the law by softening what should be hard, he suggests that « the
sometimes easy passage of the threshold helps the expansion of law and its strengthening by other methods ».
111
See Universal Declaration of Human Rights, GA Res. 217A (III) of 10 December 1948, UN Doc. A/810 (1948).
112
Gruchalla - Wesierski, Tadeusz, op. cit., note ??, at 39 and 43, speaking about the communitarian pressure to
States to accept constraints.
113
Dupuy, Réné-Jean, op. cit., note ??, at 133, where he describes the tension « entre, d’une part un droit
international positiviste, fondé sur la poursuite des intérêts particuliers des Etats, accordés sur le plan bi ou
pluratéral, et, d’autre part, la mise en place progressive d’une communauté internationale ». See also Francesco
Francioni, International ‘Soft Law’: A Contemporary Assessment, Vaughan Lowe & Malgosia Fitzmaurice (eds.),
FIFTY YEARS OF THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF SIR ROBERT JENNINGS (1996),
Cambridge: Cambridge University Press, σ. 167-178, at 174-175.
20

communitarian traits. Boyle and Chinkin suggest, for example, that soft law
instruments "provide more immediate evidence of international support and
consensus than a treaty whose impact is qualified by reservations and the need to
wait for ratification and entry into force”. 114 But here there is certainly something
missing: neither an international community can be created 115 , nor universal law
produced by the simple fact of a (non-binding) declaration of programmatory
nature. 116 As we have already said, soft law may represent precisely the contrary
idea, that of disagreement.
Moreover, if soft law instruments constitute a clear sign of
communitarization and of the emergence of a juridically relevant international
community, the effort to link the soft law phenomenon to an institutional framework
leaves us perplexed. Why do we need an institutional framework that will work as a
safety net to the process of soft-law creation? Why do we need a supervisory body or
a forum for negotiation 117 when the so much cherished communitarian consensus
naturally emerges from the drafting of soft law instruments? We believe that beyond
the practical advantages of linking soft law instruments to a pre-established
institutional forum, the insistence on an institutional framework for soft law cannot
but signify the divergences in States’ views. As Professor Sztucki stresses, soft law
might be the product of confrontation rather than cooperation. 118
Once again, one can easily observe the inconsistencies of a communitarian
reading of soft law. While soft law is associated with the ascendancy of the notion of
the international community, this community discourse is compromised by the
importance placed on the accompanying institutional mechanisms, as means for
checking its evolution towards the “right” direction. But if soft law expresses a
community consensus, why do we need a third party mechanism intervening and
shaping what the community means by right direction? It is our submission that
these inconsistencies are due to the fact that we push forward a notion of community
that does not ensure the liberty for States and other actors to create their own
114
Boyle, Alan, Chinkin, Christine, op. cit., note ??, at 214. See also Fasternath, Ulrich, Relative Normativity in
International Law, 4 EJIL (1993), pp. 305-340, at 339), who suggests that soft law « enables worldwide agreement
on the content of hard law, in that it limits the scope of acceptable subjective auto-determination ». But surely
there is no legal commitment to what has been declared – or maybe there is? See Shelton, Dinah, op. cit., note ??
at 319, who argues that “nonbinding commitments may be entered into precisely to reflect the will of the
international community...”.
115
Contra Allott, Philip, EUNOMIA: NEW WORLD ORDER FOR A NEW WORLD, 1990, Oxford, OUP, at 321 et seq.
116
See the much more careful language used by Abi-Saab, Georges, op. cit., note ??, at 60 and 65, who considers
soft law « comme moyen de réalisation d'un projet de société partagé parmi ses sujets, un droit négocié et
directif, voulu et agréé plutôt qu'imposé…[s]oft law énonce ainsi la conscience de la communauté
internationale du bésoin d’une certaine réglementation juridique ».
117
See Shelton, Dinah, Normative Hierarchy, op. cit., note ??, at 319 et seq.; Dupuy, Pierre-Marie, op. cit., note ??,
at 423.
21

identity and interact in community with others, but it often compels them or
imposes to them a duty to find their essence, their common ‘humanity’ in a specific
set of traditions excluding what is alien and other. This ‘communitarian community’
submerges the I into the We and becomes a tool of suppression rather than
identification, as we will explain in the last chapter. 119
The analysis of soft law through a communitarian prism makes it impossible
to imagine diplomatic assurances as soft law instruments. The communitarian prism
means that there can be no soft law following a logic of de-communitarization
(bilateralism) or de-institutionalisation. International human rights law has emerged
through collective fora and the communitarian/institutional element shows a strong
presence in this field. Human rights are usually presented as abstract and highly
institutionalized. Abstraction justifies the claim for universal application of human
rights and institutionalization creates an objective managerial routine where
multilateral bodies monitor and review cases of human rights violations. 120
On the contrary, in the case of diplomatic assurances “softening” takes place
in a bilateral context. The exchange of aides-mémoires that include the assurances
follows the logic of reciprocal advantage (reduction of terrorist threat for the sending
State/acquisition of a much sought criminal for the receiving State and other
advantages). 121 The element of reciprocity is considered at odds with the nature of
human rights agreements as “parallel and independent commitments to respect preexisting
moral norms”. 122 Reciprocity in the field of human rights is also attacked
because it reduces the role of third actors (re institutions). 123 . This is precisely the
case of diplomatic assurances, since they impede treaty-based monitoring bodies to
fulfill their role. Hence, it is not a coincidence that those bodies have severely
criticized the procurement of diplomatic assurances also because they do not include
provisions on third-party monitoring and enforcement. 124 Thus, it is evident that
118
Sztucki, Jerzy, op. cit., note ??, at 562.
119
This argument is inspired by Nancy, Jean-Luc, LA COMMUNAUTE DESOEUVREE, 1990, Paris, C. Bourgois.
120
This argument draws from Kennedy, David, The International Human Rights Movement: Part of the Problem?,
15 HARVARD HUMAN RIGHTS JOURNAL (2002), pp. 101-125. The risks lurking in the process of
institutionalisation have been frequently highlighted. There is a danger that the institutional forum might
function as a purgatory of any action – valid or invalid, moral or immoral. See the observations of Douzinas,
Costas, op. cit., note ??, at 180.
121
The element of bargain has already applied in the establishment of human rights norms; see human rights
clauses in EU-3 rd world agreements or the trade aspects of ozone layer protection regime (link to a right to a
clean environment).
122
Brilmayer, Lea, From ‘Contract’ to ‘Pledge’: The Structure of International Human Rights Agreements, 77 BYIL
(2006), σ. 163-202, at 165.
123
Brilmayer, Lea, ibid., at 173.
124
See our essay, p.??. It should be noted that the call for a strong enforcement might not be the most adequate
way to deal with the extraordinary challenges posed by diplomatic assurances. Past experience has showed
that policies of consultation and coordination might be more successful in some legal fields; see Lichtenstein,
22

States using diplomatic assurances attempt to bilateralize a multilateral field and
disengage themselves from the existing institutional framework. For all these
reasons, the soft law thesis as conceived through the prism of normative expansion
and communitarization cannot be invoked in the case of diplomatic assurances.
IV. Epilogue: Diplomatic Assurances and the Failure of the Liberal Dream
So, how can the liberal human rights movement respond to the extraordinary
challenges posed by the practice of diplomatic assurances against torture? On the
one hand, the attempt to use the normativity paradigm in order to question the
value of diplomatic assurances in the non-refoulement test does not lead to a clear-cut
answer, as we have seen. On the other hand, a case-by-case contestation of this
practice on the basis of the human rights record of the State of return and the special
circumstances of each deportee do not offer a general solution to the problem of
diplomatic assurances. In addition to this, there is the risk of sending the wrong
signal to States, in that a contextual analysis implies that the assurances may be
effective under specific circumstances. 125
Having failed to deliver its promise of a clear normative threshold and being
embroiled to agonizing effort to respond to social changes while preserving law’s
integrity and independence, liberal cosmopolitanism provides to human rights
lawyers an ultimate line of defense against diplomatic assurances. This argument is
conveniently summarized in the following passage from a speech by Louise
Arbour 126 :
“This system [of binding international and regional treaties] was devised by the
community of States and they agreed to be bound by it. Ad-hoc arrangements,
such as assurances concluded outside the system threaten to weaken its
foundations…[E]ven though all persons are entitled to the equal protection of
existing treaties, assurances basically create a two-class system among those
transferred, attempting to provide special bilateral protection and monitoring
for a selected few while ignoring the plight of many others in detention”.
So, human rights lawyers employ one of the basic tenets of cosmopolitan liberalism,
namely the idea of the universal character of human rights, in order to accuse States
employing diplomatic assurances of discriminating between individuals and, thus,
undermining the universal enjoyment of human rights and the multilateralism of the
Cynthia Crawford, Hard Law v. Soft Law: Unnecessary Dichotomy?, 35 THE INTERNATIONAL LAWYER (2001), pp.
1433-1441, proposing a managerial model. It remains to be seen whether such an approach could be
advantageous in the human rights field.
125
This is the problem of over- and under-inclussivenes of norms; see the observations of Koskenniemi, Martti,
Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons, 10 LEIDEN JOURNAL OF
INTERNATIONAL LAW (1997), pp. 137-162, at 145 et seq.; Klabbers, Jan, The Meaning of Rules, op. cit., note ??,
passim.
23

protection regime. 127
But is the argument in favor of universal protection and against
discrimination the right strategy towards diplomatic assurances? Our answer is in
the negative. Critical literature has already demonstrated that the idea of
foundationalism 128 , which is expressed in the case of human rights protection
through the abstraction and universality discourses, is unattainable and
illusionary. 129 Concerning first the universality discourse, human rights are
inherently based on what is called “policies of exclusion”. 130 Since human rights are
based on an understanding by each individual of its self, the construction of
individual identity becomes crucial for the human rights project. Nevertheless, the
creation of an identity, the shaping of our desires, cannot be made but in reference to
the other, to the exotic one, to the one excluded from the system. These policies of
exclusion have been constantly present in international human rights discourse:
civilized nations v. barbarian ones, men v. women, citizens v. foreigners, human
beings v. beastly terrorists. Despite its universalizing rhetoric, the human rights logic
is inherently exclusionary. No universal concept can express the singularity of the
self and no measure can prevent discrimination: in our case, for example, preventing
diplomatic assurances against torture won’t eliminate the differences in the degree
of enforceable protection against refoulement as illustrated by the divergences in
domestic case-law, and so on. 131
What options remain then to the human rights movement in its battle against
the practice of diplomatic assurances? How can the movement defend the much
cherished human rights protection framework without alienating itself from the
social environment, which is characterized by an increasing hostility of Western
societies towards alleged terrorists and a readiness to compromise their human
rights? 132 How can international human rights law preserve its allegedly a-political
126
Arbour, Louise, op. cit., note ??, at 522.
127
See Nowak, Manfred, op. cit., note ??, at 687 (speaking of an arbitrary distinction); Moeckli, Daniel, op. cit.,
note ??, at 548; Amici Curiae Brief for Organisation mondiale contre la torture and the Redress Trust in Support of
Petitioner-Appellee Sameh Sami S. Khouzam, and for Affirming the Judgment of the District Court, op. cit., note ??, at
19-23.
128
See the definition provided by Fish, Stanley, op. cit., note ??, at 342-343 (: it must be invariant across contexts
and even cultures; it must stand apart from political, partisan, and “subjective” concerns in relation to which it
must act as constraint; and it must provide a reference point or checkpoint against which claims to knowledge
and success can be measured and adjudicated [and thus render our activities objective and principles]).
129
See also the observations of Koskenniemi, Martii, International Law in Europe, op. cit., note ??.
130
The following argument draws heavily from the intellectual work of Douzinas, Costas, op. cit., note ??. See
also Orford, Anne (ed.), INTERNATIONAL LAW AND ITS OTHERS, 2006, Cambridge, CUP.
131
de Londras, Fiona, op. cit, note ??.
132
See how easily surrenders the human rights rhetoric to the evil discourse of Western governments. After
identifying the enemy, the evil, the target of the anti-terrorist measures, Western governments use the human
rights language (speaking about human security) to present themselves as rescuers of Western values and
24

and objective character without becoming irrelevant, without turning a deaf ear to
changing societal conception, without being relegated to the backroom of policymaking?
We believe to have proved that recourse to a legal discourse does not have
much to offer in this battle. Maybe then searching for an answer in the international
legal discourse is asking too much from our discipline. Maybe any specific answer
international law might give in this case is either an anxious recognition of its
insufficiency or a banalization of the evil that Western governments do when
adopting these anti-terrorist policies. 133 Maybe consuming ourselves to procedural
guarantees and ad hoc solutions is inefficient and, turning away from formalism, we
should appeal to law’s ultimate foundations, the elements of humanity and justice –
Herr Settembrini would have surely loved that. We strongly believe that such an
appeal cannot conceal law’s vulnerable existence. The biggest crimes have been
committed in the name of humanity. 134 As for law’s justice, this seems to vanish at
the very moment of law’s foundation 135 …And international scholars are left fighting
for their discipline’s pertinence in international politics and against their illusions.
individual liberties. The rescuer mask legitimizes any governmental action and allows States to argue that
those suspected of terrorist ties do not deserve the same human rights protection as other suspects. This has
been the British line of argumentation in the Saadi v. Italy and Ramzy v. The Netherlands cases, where it was
suggested that the risk of torture in the non-refoulement test should be balanced against the threat posed by the
targeted individual to the fundamental rights of the citizens. See Saadi v. Italy, op. cit., note ??, § 114; Ramzy v.
The Netherlands, Observations of the Governments of Lithuania, Portugal, Slovakia and the United Kingdom, op. cit,
note ??, § 3.2.
133
See Koskenniemi, Martti, Faith, Identity..., op. cit., note ??, passim; Koskenniemi, Martti, ‘The Lady Doth Protest
Too Much’: Kosovo and the Turn to Ethics in International Law, 65 MODERN LAW REVIEW (2002), pp. 159-175,
passim.
134
“Whoever invokes humanity wants to cheat”, said Schmitt, Carl, THE CONCEPT OF THE POLITICAL, 1996,
Chicago, The Univ. of Chicago Press, at 54, paraphrasing Pierre-Joseph Proudhon’s famous quote. – CHECK!
135
See Derrida, Jacques, Force of Law : The Mystical Foundation of Authority, 11 CARDOZO LAW REVIEW (1990), pp.
922-1039; Bosteels, Bruno, Force of Nonlaw: Alain Badiou’s Theory of Justice, 29 CARDOZO LAW REVIEW (2008), pp.
1905-1926.
25

SUMMARY
The paper focuses on the way international law discourse deals with diplomatic
assurances as a means for bypassing the principle of non-refoulement in the case of the
prohibition of torture. The paper highlights how the effort to bypass the principle of nonrefoulement
through diplomatic assurances raises serious questions concerning the
normativity threshold in international law and illustrates how the normativity discourse is
manipulated for different ends. After focusing on the way diplomatic assurances attempt to
bypass the principle of non-refoulement, the paper examines the relevant practice of States
seeking diplomatic assurances and the (negative) reactions of IOs and NGOs. It also analyzes
the relevant case-law before concluding that it is not completely clear what is the legal scope
of diplomatic assurances and whether they are binding, not binding or something in between.
The paper highlights the dilemmas surrounding the binding/non-binding conundrum with
regard to the protection of human rights.
That brings us to the second part of the paper, which deals with the extraordinary
challenge diplomatic assurances pose to the traditional views on the norm-creating process,
especially as exemplified by soft law. After a brief presentation of the soft law doctrine, its
content and its advantages/distinctive traits vis-à-vis the traditional sources of international
law-making and the way it modifies our conception of normativity, we intend to analyze the
classic form/intention debate when trying to determine the normative threshold. Using a
broad definition of soft law that includes diplomatic assurances, the paper then turns to the
way international lawyers have “tamed” soft law so that it can be admitted into the legal
realm and how diplomatic assurances challenge this attitude.
Firstly, soft law has been (grudgingly) identified and admitted into the international
legal family through constructing it as a step towards normative expansion. In addition to
this, discussion about soft law usually reproduces the usual normative vocabulary of
compliance, enforcement, sanctions etc. making it difficult to distinguish it from hard law
(legalization paradigm). Finally, the soft law paradigm has been associated with a
communitarian project in international law and with the increased institutionalisation of the
international legal order. We suggest that it is only under those conditions that soft law has
been received in international law. Diplomatic assurances, however, neither follow the
normative expansion paradigm (they are a clear sign of backtrack of the legal realm), nor have
a communitarian allure (they are bilateral arrangements that even try to circumvent
institutional monitoring authority), while the effort of IOs and NGOs to teeth diplomatic
assurances simply highlights the limits of the normative gradation paradigm.
The paper reaches the conclusion that the instrumentalisation of normativity,
through the “greedy” and anarchical – to use two buzzwords of the last days – development
of the soft law paradigm does not necessarily serve international law as diplomatic assurances
prove. As far as the practice of diplomatic assurances in the war of terror is concerned, we
sharply criticise the recourse of States to evil in order to present themselves as rescuers of
their citizens and formalize a practice of discrimination and derogation from the torture
prohibition. We also highlight, however, the agony of normativity of human rightists that
impoverishes their juridical imagination and leads them to a technical and thus routinized
reaction against diplomatic assurances.
26