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Unpublished Paper
INTERPRETING AN INCORPORATIVE STATUTE: THE ROLE OF FOREIGN AUTHORITY IN U.S. ASYLUM ADJUDICATION
ExpressO (2012)
  • Fatma E Marouf
Abstract
U.S. asylum law is based on a domestic statue that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. The Article highlights this significant omission and urges courts to examine the interpretations of other states parties to the Protocol in asylum cases. Using as an example the current debate over social visibility in defining a “particular social group,” which is a part of the definition of a “refugee” that has led to a circuit split, the Article shows an emerging international consensus on this issue and argues that the interpretations of our sister signatories should inform the analysis of U.S. courts. The Article also addresses some of the challenges involved in examining foreign authority, including: how to select and weigh such authority in the context of treaty interpretation; what weight, if any, courts should give to the interpretation of the European Union, which is comprised of states parties and has taken steps towards creating a Common European Asylum System; and how courts should treat the interpretations of the United Nations High Commissioner for Refugees, which is not a state party but assumes state-like functions in conducting refugee status determinations. The Article concludes that asylum and refugee law is an area ripe for deeper transnational dialogue, in which U.S. courts should play a critical part.
Keywords
  • ASYLUM,
  • TREATY INTERPRETATION,
  • FOREIGN LAW,
  • FOREIGN AUTHORITY,
  • FOREIGN DECISIONS,
  • REFUGEE
Disciplines
Publication Date
March 9, 2012
Citation Information
Fatma E Marouf. "INTERPRETING AN INCORPORATIVE STATUTE: THE ROLE OF FOREIGN AUTHORITY IN U.S. ASYLUM ADJUDICATION" ExpressO (2012)
Available at: http://works.bepress.com/fatma_marouf/1/