Diplomatic Assurances: A Structural Weakness in Human Rights Law?

As the Bush administration’s time in office comes to a close, it seems appropriate to start to reflect on the impact that policies pursued by this administration have had on law. These impacts have been plentiful and extend far beyond the realm of the United States into both international law and into the law and policies of other countries. From an Irish perspective the issue of transit states’ liabilities relating to extraordinary rendition has been particularly germane. This results from the fact that the United States has been given fly-over rights and been permitted to use Shannon Airport for the purposes of stop-over, refuelling etc., as indicated below. (image courtesy of the Council of Europe and Irish Council for Civil Liberties)

The concern in Ireland — shared by the European Union and the Council of Europe — is that these rights may have implicated Ireland in the practice of extraordinary rendition. As the European Convention on Human Rights is part of Irish domestic law (through the ECHR Act 2003), Ireland’s non-refoulement obligation might be called into question here and, to that end, the Irish government has sought and received comprehensive diplomatic assurances ("D.A.s") from the US government that no individuals have been, are being, or will be ‘rendered’ through Irish airspace. This has resulted in a quite concerted debate in Ireland about whether diplomatic assurances can ever satisfy a state’s obligation of non-refoulement under Article 3 of the ECHR.

In some recent work, forthcoming in the Irish Yearbook of International Law, I argue that diplomatic assurances can satisfy Article 3 provided they fulfil four criteria gleaned from case law:

► 1. The promise must be adequate;

► 2. The promisor must have effective control over the relevant circumstances;

► 3. The promisor must be credible in relation to the matter at hand; and

► 4. The Diplomatic Assurance must be capable in practice of protecting the individual(s).

For a human rights lawyer it is, of course, somewhat uncomfortable to argue that D.A.s can satisfy a state’s obligation to protect individuals from torture, inhuman and degrading treatment, and states’ practice in accepting such assurances arguably call that state’s real commitment to rights-protection into question. However, and this is really the gist of my argument in the IYIL piece, this exposes a structural difficulty with human rights law as much (if not more) than it does a political difficulty with state practice. In this respect, it may be more productive for us to parse judgments and principles to expose these weaknesses than to assert that D.A.s are not in fact acceptable in law.

The fact that the non-refoulement obligation, which is absolute in the ECHR, can be fulfilled through diplomatic practice rather than through effective rights protection perhaps exposes a weakness in human rights law that we can now focus on trying to mitigate, as perhaps the European Court of Human Rights has tried to do by seeming to raise the standards for satisfaction in the recent case of Saadi v Italy (judgment; case note; prior post).