Taking Remedies Seriously: The Normative Implications of Risking Torture

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Under the international legal prohibition on torture, states must refrain from deporting persons to countries where there is a substantial risk that they would be tortured. But why and to what extent should the otherwise lawful immigration powers of a state be delimited by the potentially illegal act of another state? This Article contends that current scholarship fails to provide satisfactory answers to these questions and develops a new way to approach this puzzle. It offers a risk-differentiated framework of analysis that justifies the proscription of transfers presenting the risk of torture based on an examination of the responsibility of the transferring state through criminal and tort doctrines. This Article provides a means to identify the threshold level of risk at which the proscription is justifiably triggered through a comparative assessment of the standards of risk in international and U.S. domestic law. The Article then employs the normative and conceptual insights gained from this inquiry to assess whether the proscription can be justifiably regarded as inherent in a person’s right not to be tortured vis-à-vis the transferring state.