Stealth Emulation: The United States and European Protection Norms

In: The Global Reach of European Refugee Law, Cambridge University Press, co-edited by Helene Lambert, Jane McAdam, and Maryellen Fullerton, 2013 Forthcoming

Brooklyn Law School, Legal Studies Paper No. 352

27 Pages Posted: 8 Aug 2013 Last revised: 9 Aug 2013

Date Written: August 8, 2013

Abstract

Theorists in international relations and sociological institutionalism suggest that norm emulation is more likely to occur in weak peripheral States than in the hegemon. Compounding the expectation that there might be less emulation of EU norms, the US scene presents additional negative factors: a reflexive American exceptionalism mindset, compounded by public antipathy to reliance on foreign law. Other hurdles include the US dualist tradition, with its strong emphasis on the domestic implementation of international norms, and the extensive multi-tiered US asylum system, which generates thousands of published asylum opinions every year. Despite these obstacles, there are suggestions that the process of norm diffusion is underway. This paper posits a rational account for the emulation of EU norms. The chief emulation drivers are the new challenges to the US protection regime posed by the seemingly unstoppable drug violence in Mexico and by transnational activity involving Central American-US criminal gangs. The uncertainties generated by these high profile phenomena appear to have pushed the BIA to search for new solutions. Though direct evidence is elusive, this paper identifies the definition of membership in a particular social group and subsidiary protection as two examples of partial emulation of EU norms in contemporary US jurisprudence.

Keywords: American Exceptionalism, Asylum, Asylum Officers, Complementary Protection, Constructivism, Constructivist Theory, Court of Justice of the European Union, Diffusion, Dualism, Emulation Processes, European Union, Foreign Law, Humanitarian Asylum, Indiscriminate Violence, International Relations

Suggested Citation

Fullerton, Maryellen, Stealth Emulation: The United States and European Protection Norms (August 8, 2013). In: The Global Reach of European Refugee Law, Cambridge University Press, co-edited by Helene Lambert, Jane McAdam, and Maryellen Fullerton, 2013 Forthcoming; Brooklyn Law School, Legal Studies Paper No. 352. Available at SSRN: https://ssrn.com/abstract=2307521

Maryellen Fullerton (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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