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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
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