Unilateral Diplomatic Assurances as an Alternative to Provisional Measures

Abstract

This paper will discuss the possibility for a state to provide diplomatic assurances in expulsion cases as an alternative to receiving a court order for provisional measures against it. In particular, it will draw on the emerging practice before the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) on the general use of assurances (or “promises”, “undertakings”, or “unilateral declarations”) and their interaction with applications for provisional measures.

Both the ECtHR and ICJ will entertain these kinds of pledges, but they consider them differently when the declaration is made between states or made directly to the court. In addition, there are slightly different considerations when the declaration seeks to settle the case in its entirety, or to merely serve as an alternative to provisional measures. One emerging difficulty is that assurances that an expelled individual will not be mistreated tend to be assessed as questions of fact when issued between states, but on the other hand assurances to a court generally treated as issues of law when given directly to the court. In turn, this different treatment means that assurances made to the court tend not to be examined for credibility and reliability, so that, if states were to adopt a practice of issuing assurances in an expulsion case to the court instead of to another state, the expelling state might be able to overcome any non-refoulement provisional measures without credibility and reliability assessments. This practice would then erode some of the important protection of the non-refoulement obligation.

Keywords: expulsion, non-refoulement, assurance, undertaking, declaration, measure, provisional, interim

JEL Classification: K00, K10, K19, K30, K33, K39, K40, K41, K49