4.
Diplomatic assurances are usually sought on an individual basis, with regard to
particular persons whom the host State intends to extradite or otherwise remove from its
territory. More recently, however, diplomatic assurances in the form of general clauses
concerning the treatment of deportees have been included in agreements governing the
deportation of persons from one State to another. 6
5.
Diplomatic assurances given by the receiving State do not normally constitute
legally binding undertakings. They generally provide no mechanism for their
enforcement nor is there any legal remedy for the sending State or the individual
concerned in case of non-compliance, once the person has been transferred to the
receiving State. Given that diplomatic assurances are sought only when the sending
State perceives a need for guarantees with regard to the treatment of the person
concerned in the receiving State, questions arise as to the conditions under which the
sending State may rely on such assurances as a basis for removing a person from its
territory in keeping with its obligations under applicable international as well as national
standards.
6.
This note examines the use of diplomatic assurances from the point of view of
international refugee protection. Two areas are of particular interest. First, it is
necessary to clarify the significance of diplomatic assurances where the host State
intends to transfer a refugee or asylum-seeker to another country in circumstances
which may expose him or her to a risk of persecution. This is addressed in Part II of the
note, which provides an overview of the host State’s obligations stemming from the
prohibition of refoulement under international refugee and human rights law as well as
customary international law, and analyzes their implications for the use of diplomatic
assurances. 7 Second, where diplomatic assurances are given with regard to an asylumseeker, this raises questions as to the impact they may have on the determination of his
or her eligibility for refugee status. Part III of this note deals with relevant procedural
and substantive issues.
paragraphs 9–10 and 18–20; Special Rapporteur of the UN Commission on Human Rights on
torture and other cruel, inhuman or degrading treatment or punishment, Report submitted
pursuant to General Assembly resolution 58/164, UN document A/59/324, 1 September 2004
(hereafter: “Special Rapporteur on Torture, Report of 1 September 2004”), at paragraphs 29–30;
Report of the Independent Expert on the Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism to the UN Commission on Human Rights, U.N. Doc.
E/CN.4/2005/103, 7 February 2005, at paragraphs 54–56. See also Human Rights Committee,
Concluding Observations on Yemen (U.N. Doc. CCPR/CO/84/YEM, 9 August 2005, at
paragraph 13); Canada (U.N. Doc. CCPR/C/CAN/CO/5, 2 November 2005); Committee
Against Torture, Concluding Observations/Comments on Canada (U.N. Doc.
CAT/C/CR/34/CAN, 7 July 2005, at paragraph 4(b)); United Kingdom (U.N. Doc.
CAT/C/CR/33/3, 10 December 2004, at paragraph 4(d).
6
See the Memorandum of Understanding regulating the provision of undertakings in respect of
specified persons prior to deportation concluded between the United Kingdom and Jordan on 10
August 2005. A similar agreement was concluded between the United Kingdom and Libya on
18 October 2005.
7
This note does not address questions related to the principle of non-refoulement in
international humanitarian law.
3