Volume 2, Fall 2021, Issue 1

WHEN NON-STATE ACTORS COMMIT “TORTURE” UNDER THE UNITED NATIONS CONVENTION AGAINST TORTURE: AN OVERVIEW OF CURRENT PERSPECTIVES

Malcolm McDermond

According to the United Nations Convention Against Torture (UNCAT) Article 1 definition of torture, torture must be committed by or acquiesced to by a public official or other person acting in an official capacity. Nevertheless, with the fragmentation of authority in war-torn states and the existence of regions controlled by insurgents or militia in opposition to a de jure authority, this reality of de facto regime control raises the question of whether these de facto regimes’ agents are covered under the umbrella of the UNCAT’s public official concept.

This article provides an overview of trends in international law pertaining to the UNCAT’s coverage of these rogue regimes and demonstrates that the current trend is to broadly interpret the public official concept to include torturous acts by de facto regimes when such regimes exercise quasi-governmental functions and sufficient control over a territory. Further, this article argues that interpreting the public official concept broadly is not only supported by the drafting history of the UNCAT but also necessary to ensure that the universal prohibition of torture codified by the UNCAT is, in fact, universal.

CURRENT TRENDS ON MIGRATION AND HUMAN RIGHTS

Felipe González

Human migration is both a central feature and a driver of our history. In the 20th and 21st centuries, migration has become a global phenomenon and has effectuated a developing global response to the unique situation of migrants, the drivers of migration, and the places that migrants settle in. This article begins by identifying important elements of the present state of migration: migration trends; the diminishing distinction between migrant and refugee during this record period of migration flows, in which people who qualify for refugee status comprise more than half of all migrants; the development of a multilateral framework for migration and migrant’s rights; and international actors.

This article then examines the pandemic and concludes by highlighting present and emerging trends—surveying issues that are shaping the field of migration. This article draws on the experience of the present pandemic to highlight practices that are a vital part of states’ emergency–response toolkit. In the section on present and emerging trends, this article discusses the gendered experience of migration, child migration, climate change, the state and international institutions, and the criminalization of migration and the externalization of borders. This article presents a dual international and state–level perspective, at times contextualizing its discussion in the context of the United States.

THE PARIS PRINCIPLES, NHRIS, AND ENABLING LEGAL FRAMEWORKS

Laura Carlson

This article examines four national enforcement models with respect to employment discrimination claims against the requirement of enabling legal frameworks for National Human Rights Institutions (“NHRIs”) set out under the Paris Principles. The four models identified are the private enforcement as typified by the United Kingdom, hybrid agency-private enforcement as seen in the United States, the works councils model as originated in Germany, and the corporatist model as found in the Swedish labor law model. This comparative analysis leads to the conclusion that the work of NHRIs in promoting and protecting human rights in the context of employment discrimination protections must rest upon a legal framework that enables individuals and civil society to bring discrimination, and more broadly, human rights claims. States cannot have a monopoly with respect to areas of challenge concerning discrimination, but rather, individuals must be enabled to bring claims and thus contribute to defining the areas of concern regarding discrimination.

THE TRAGEDY OF INTERNATIONAL COMITY: HOW DISCRETION CAUSED THE DEATH OF FOREIGN IMMUNITY

Cohl Love
Student Note

This article examines the concept of “international comity” – affording deference to a foreign nation in actions where that nation has an interest in its resolution in order to promote durable international relations–and whether or not this concept has been effective and consistent in nurturing foreign relationships. The article then brings light to the Foreign Sovereign Immunities Act of 1976 (FSIA) and the manner in which it operates with, or perhaps hinders, the doctrine of ‘international comity’. After the article addresses different public policy perspectives among the varying approaches to international comity, the final part addresses the complexities surrounding a proposed, two-part legislative action. This analysis finally leads to the conclusion that the doctrine of international comity is ultimately unsuccessful in ensuring the strong foreign associations it set out to create because of the exorbitant layers of ambiguity obscuring its purpose and the wide range of discretion afforded to courts. The article argues the best way to restore focus on the doctrine’s original purpose is through Congressional action.