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Diplomatic Assurances - Safeguard against Torture or Undermining the Prohibition of Refoulement?

Isman, Sara (2006)
Department of Law
Abstract
To eliminate terrorism and security risks in its country, States seek to return alleged terrorists to their countries of origin. This is sometimes problematic because of the human rights situation in the countries of origin&semic the return involves the prohibition of torture or ill-treatment, and the prohibition of refoulement. States are prohibited from practicing torture, including putting anyone in a situation where he might risk being subject to torture. Therefore the practice of relying on diplomatic assurances has developed. Diplomatic assurances have been used for a long time as a safeguard against death penalty or unfair trials. Now, States rely on assurances as to the treatment of a returnee. The assurances are secured on the... (More)
To eliminate terrorism and security risks in its country, States seek to return alleged terrorists to their countries of origin. This is sometimes problematic because of the human rights situation in the countries of origin&semic the return involves the prohibition of torture or ill-treatment, and the prohibition of refoulement. States are prohibited from practicing torture, including putting anyone in a situation where he might risk being subject to torture. Therefore the practice of relying on diplomatic assurances has developed. Diplomatic assurances have been used for a long time as a safeguard against death penalty or unfair trials. Now, States rely on assurances as to the treatment of a returnee. The assurances are secured on the diplomatic level of international relations between States. Thy can be either individual or collective and they are used mainly in the area of asylum and renditions. Both the prohibition of torture and the prohibition of refoulement are absolute rights that are not possible to derogate from under any circumstances. States are prohibited by public international law to practice torture, and must protect persons from torture by other State officials or persons, in or outside the territory of the State. Organisations such as Amnesty International (AI) and Human Rights Watch (HRW) have ruled out the practice as being insufficient and illegal. International bodies and courts such as the European Court of Human Rights (ECtHR), the Human Rights Committee (HRC), and the Committee against Torture have considered cases involving diplomatic assurances, and in general deemed them insufficient, although not illegal as such. Therefore, the question whether there are circumstances that can make the assurances reliable and sufficient, and thus a safeguard against torture or ill-treatment, arises. In this thesis, I argue that the existence of a transparent procedure, subject to judicial oversight, and insight by the concerned individual can possibly make the assurances reliable. To be an effective safeguard, I argue that there are further elements that are required of the assurance. First, the assurance should be legally binding and issued by an authority that has actual and effective control over the situation in the receiving State. Assurances should be reciprocal, and should include legal repercussions if violated. The assurance must be enforceable&semic it should include reference to a mechanism of enforcement, and provisions regarding settlement of disputes. The individual concerned must have ability to refute the assurance, i.e. the presumption created by the assurance, and the issuing authority, and he should have the right to appeal the decision to be returned under an assurance. Upon return, the treatment of the returnee should be closely monitored by officials from the sending State and independent bodies or organisations. Monitoring must start immediately and include private visits, medical examinations and the possibility of unannounced visits. (Less)
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author
Isman, Sara
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt
language
English
id
1558562
date added to LUP
2010-03-08 15:55:22
date last changed
2010-03-08 15:55:22
@misc{1558562,
  abstract     = {To eliminate terrorism and security risks in its country, States seek to return alleged terrorists to their countries of origin. This is sometimes problematic because of the human rights situation in the countries of origin&semic the return involves the prohibition of torture or ill-treatment, and the prohibition of refoulement. States are prohibited from practicing torture, including putting anyone in a situation where he might risk being subject to torture. Therefore the practice of relying on diplomatic assurances has developed. Diplomatic assurances have been used for a long time as a safeguard against death penalty or unfair trials. Now, States rely on assurances as to the treatment of a returnee. The assurances are secured on the diplomatic level of international relations between States. Thy can be either individual or collective and they are used mainly in the area of asylum and renditions. Both the prohibition of torture and the prohibition of refoulement are absolute rights that are not possible to derogate from under any circumstances. States are prohibited by public international law to practice torture, and must protect persons from torture by other State officials or persons, in or outside the territory of the State. Organisations such as Amnesty International (AI) and Human Rights Watch (HRW) have ruled out the practice as being insufficient and illegal. International bodies and courts such as the European Court of Human Rights (ECtHR), the Human Rights Committee (HRC), and the Committee against Torture have considered cases involving diplomatic assurances, and in general deemed them insufficient, although not illegal as such. Therefore, the question whether there are circumstances that can make the assurances reliable and sufficient, and thus a safeguard against torture or ill-treatment, arises. In this thesis, I argue that the existence of a transparent procedure, subject to judicial oversight, and insight by the concerned individual can possibly make the assurances reliable. To be an effective safeguard, I argue that there are further elements that are required of the assurance. First, the assurance should be legally binding and issued by an authority that has actual and effective control over the situation in the receiving State. Assurances should be reciprocal, and should include legal repercussions if violated. The assurance must be enforceable&semic it should include reference to a mechanism of enforcement, and provisions regarding settlement of disputes. The individual concerned must have ability to refute the assurance, i.e. the presumption created by the assurance, and the issuing authority, and he should have the right to appeal the decision to be returned under an assurance. Upon return, the treatment of the returnee should be closely monitored by officials from the sending State and independent bodies or organisations. Monitoring must start immediately and include private visits, medical examinations and the possibility of unannounced visits.},
  author       = {Isman, Sara},
  keyword      = {Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Diplomatic Assurances - Safeguard against Torture or Undermining the Prohibition of Refoulement?},
  year         = {2006},
}