Diplomatic assurances and the silence of human rights law

Certain states resort to diplomatic assurances to facilitate and legitimise the removal of non-nationals to third states with dubious human rights records. Typically, these removals involve two countries where human rights are conceived of in different ways and institutionalised to different degrees. Given their practical importance in the U.S. programme of "extraordinary renditions" as part of the ongoing "war on terror", diplomatic assurances have definitely moved into the domain of high politics. Earlier, such assurances were mainly seen as a migration control tool. Now, cases are reported where they provided a prelude to the interrogation, or incapacitation of perceived enemies in less protective jurisdictions. In this working paper, I argue that the combination of diplomatic assurances and rendition represent a contemporary form of ban. Their main function is to perform a double move: to assure the rendering community of its own faithfulness to human rights law, while the captive is given to human rights law in its withdrawal.This argument is developed in three main steps. First, I will explore the effects of diplomatic assurances on the international law of human rights. In Section 2, I shall demonstrate that a specific diplomatic assurance constitutes an agreement to disagree on the precise content of the torture prohibition in international human rights law. Section 3 explains why diplomatic assurances must be regarded as treaties under international law. In Section 4, I explore the uneasy relationship between diplomatic assurances and multilateral human rights instruments, with treaty law unable to reduce ambiguity.Second, I will attempt to explain the structures of which diplomatic assurances form part, and show how such assurances deny the articulation of human rights violations on multiple levels: by courts, by the captive, by the monitoring diplomat, and by the norm itself. Section 5 will be devoted to this task. Finally, in the last step, I will argue that the silence thus produced is not accidental, but must be seen as an integral part of the productivity of human rights law in a system of nation-states