The Convention Against Torture and Nonrefoulement in U.S. Courts

Abstract

In 1999—nine years after Senate ratification and five years after submitting its instrument of ratification—the United States finally implemented domestic regulations to fulfill its nonrefoulement obligations under Article 3 of the Convention Against Torture (CAT). Since then, the U.S. domestic definition of torture may have become one of the most litigated treaty provisions in U.S. courts. Last year alone U.S. immigration judges adjudicated over 25,000 CAT claims, and in the past four years nearly every federal circuit court has grappled with the CAT regulations. Because CAT determinations are often the last step preventing migrants from be removed from the United States, consistent application of the United States’ treaty obligations is quite literally a matter of life or death. And yet differences remain. Two circuit splits have emerged regarding the CAT definition of torture: one examining government involvement and an implied “rogue officer” exception and another considering the “consent or acquiescence” required for non-State actors. Most recently, in June 2020, the Trump administration proposed to significantly alter the CAT regulations and take a side in both circuit splits. This article aims to recontextualize U.S. circuit court interpretation of CAT provisions from a merely domestic immigration process to an international law framework. In particular, the article will examine the U.S. history related to implementing CAT, how federal circuits have created two significant splits in their interpretations of CAT Article 1, why the public international law context is integral to domestic interpretation of the CAT Article 1, and how U.S. application of CAT compares to the treaty’s drafting history and the practice of international bodies and courts. The article shows how the CAT drafting history and interpretation by international bodies consistently frame the public official nexus requirement contained in the CAT definition of torture as part of a State responsibility analysis, particularly a due diligence standard. Understanding this State responsibility context and its application to refoulement cases can help U.S. courts harmonize their divergent interpretations of torture under CAT.