A master thesis from Aalborg University
Danmarks ansvar i forbindelse med brug af diplomatiske garantier ved udvisning af udlændinge
[Danmark's responsibility with regard to use of diplomatic assurances in expelling non-nationals]
Forfatter(e)
Semester
4. semester
Uddannelse
Udgivelsesår
2021
Afleveret
2021-05-18
Antal sider
87 pages
Abstract
The use of diplomatic assurance, as a political and legal tool, to expel non-nationals has been an increasing occurrence during the last decades. In parallel with the increased use of diplomatic assurances, there has arisen a debate about whether the use of diplomatic assurances in Denmark is compatible with the country's international obligations. The purpose of this thesis is to use the traditional legal dogmatic method, to emphasize Denmark’s responsibility with regards to the use of diplomatic assurances in expelling nonnationals, with focus on the prohibition of torture in the European Human Right Convention article 3. The thesis will firstly establish under which circumstances Denmark can expel nonnationals and secondly which conditions that should be met when making use of a diplomatic assurance. Thirdly the thesis will determine which legal national- and international obligations Denmark has according to the prohibition against torture and if these are in accordance with the Danish legislation and legal practice and if not, this thesis will consider whether there is a need for adjustment in the latest. When using diplomatic assurances there are some clear criteria which must always be upheld, for the purpose of sending a foreigner to a country, where there is a risk of torture. Both the European Human Right Court in Strasbourg and United Nations Human Rights- and Torture Committee has several times established, that the agreement must be precise, explicit and detailed. Furthermore, the diplomatic assurance has to contain the possibility of monitoring the agreement by the issued state and there should be access to terminate the assurance, in cases where the Contracting State does not comply with the agreement. After an analysis of several danish case laws, wherein the Danish government made use of a diplomatic assurance, it can be concluded that even though Denmark overall acts in accordance with international obligations, there are several factors, that indicate, that there is a need for adjustments in the Danish legislation and legal practices regarding the use of diplomatic assurance. The first step Denmark could take to adjust, is to incorporate the UN’s convention against torture, so that it becomes a part of national law and legally binding for the Court and thereby increase the citizens legal certainty. It has been recommended several times that Denmark incorporate the convention, since the establishment in 1987.
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