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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.
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