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U.S. asylum law is based on a domestic statute 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. This 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," the Article demonstrates the utility of a comparative analysis even when our sister signatories' interpretations are not uniform. 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; and how courts should treat the interpretations of the United Nations High Commissioner for Refugees. 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.

Publication Citation

45 N.Y.U. J. Int'l L. & Pol. 391 (2013)