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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
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