1888 Articles Home | Legal Articles		Legal RSS
Creating Illusions: Diplomatic Assurances

Are diplomats violating domestic and international laws? Human rights organizations regularly complain that developing countries invariably fail to comply with their diplomatic assurances against the violation of the contents of international instruments governing torture, legal rights and fair trials. But these organizations are unable to present the all-important legal argument: virtually all such assurances have no foundation in law.
Author: Rakesh Saxena	Article Tools:

Empty promises. That’s the term Human Rights Watch often uses to describe diplomatic assurances. But, on closer scrutiny, it is obvious that the fundamental issue goes well beyond the mere value of a diplomatic promise. Most diplomatic notes guaranteeing human rights safeguards are essentially illegal; illegal because they are issued outside the confines of underlying domestic legislation and illegal because the person issuing such promises is rarely, if ever, granted the jurisdiction to do so by parliament.

Human rights organizations regularly complain that developing countries invariably fail to comply with their diplomatic assurances against the violation of the contents of international instruments governing torture, legal rights and fair trials. But these organizations are unable to present the all-important legal argument: virtually all such assurances have no foundation in law. Not only are such assurances usually issued without jurisdiction; but also the subject of rendition has no valid recourse to a competent tribunal if such assurances are violated.

It is not a question of doubting the intention behind diplomatic assurances—politicians in the industrialized world often refer to comity and good faith principles when justifying their reluctance to look beyond a diplomatic note.

For the sake of the current proposition, let us assume that those persons generating a diplomatic assurance are fully committed to ensuring that a post-rendition process does not contradict implied and implicit pre-rendition guarantees. But is that commitment enough to warrant the removal of a person from one country to another?

Complicating the scenario is the usual citing of the fact that most developing countries are signatories to a variety of international human rights conventions; and that more than a few such countries have adopted “elite” constitutions, e.g. India and South Africa, even Iraq for that matter. But have the relevant human rights clauses in the international conventions and elite constitutions been adequately domesticated into local laws? And is that lack of domestication, coupled with high levels of corruption inside the state law enforcement arms of third-world nations, sufficient grounds to reject a diplomatic assurance in the form of a brief note from one diplomat or another?

Quite clearly, a country ordering rendition must have evidence of domestication, preferably in the form of a credible legal opinion. And, it stands to reason that, if the domestication process has been a success, there may no need for an assurance in the first place; the legal opinion could well negate any post-rendition human rights concerns.

The problem is that (a) there are no judicial remedies, in line with international instruments, in the overwhelming majority of developing countries and (b) the access to judicial remedies is totally unacceptable in countries where the domestication process itself has, for all material purposes, been completed, e.g. India, Turkey, South Africa and Brazil.

In any event, regardless of the status of domestication, the other core issue is fairly straightforward: does the diplomatic issuing an assurance have jurisdiction to do so? Just because a diplomatic note is received through diplomatic channels does not prove jurisdiction. In fact, in most instances, the diplomat issuing a note does note confirm that he or she has jurisdiction to issue an assurance; one also cannot find examples where the diplomat making assurances has been granted specific jurisdiction through a cabinet resolution or an act of parliament. In the opinion of one human rights lawyer based in South East Asia, nearly all human rights-related diplomatic notes are prepared without the maker having any jurisdiction at all!!

Also, nearly all such diplomatic notes create an illegal (a nullity) international agreement: an assurance is issued by one country (presumably represented in this regard by a diplomat) and accepted by another country; whereas the person accepting the assurance may have jurisdiction, the issuer has none.

About Author

Authored by Rakesh Saxena. Mr. Saxena is a specialist writer on matters relating to the war on terror and the world’s conflict zones, and the impact of both on the global economy. He can be reached at saxena@shaw.ca URL: www.undervaluedsituations.com

Article Source: http://www.1888articles.com

Visit WebSite

Legal

Identity Theft

Living Will

All Category