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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.
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