The Law's Broken Promises to Stateless Persons

By Liew, Jamie Chai Yun | The Brown Journal of World Affairs, Spring/Summer 2020 | Go to article overview

The Law's Broken Promises to Stateless Persons


Liew, Jamie Chai Yun, The Brown Journal of World Affairs


CANADA IS THE CANARY IN the coal mine in terms of efforts to combat statelessness among Western democracies. One might assume that Canada would have a sophisticated system for addressing stateless persons-those without any citizenship whatsoever in any nation-since its reputation for welcoming refugees is unparalleled. In 1986, Canada won the Nansen Medal, the highest distinction bestowed by the United Nations for aiding refugees.1 Its inland refugee determination system is considered the gold standard all over the world. Furthermore, i Canadians have a generous refugee sponsorship program, which allows groups of persons, not just the government, to sponsor overseas refugees.2 This system is not without its problems. One notable example is that some border crossers at the Canada-United States border are denied the right to a refugee hearing and are consequently in danger of being sent back-before their refugee claim is assessed-to places where they may face persecution and/or torture.3 Notwithstanding such shortcomings, Canada is a democracy; there are continual efforts to improve the refugee system through dialogue between the courts and the legislature, advocacy and education by lawyers, NGOs, and migrants themselves, and the hard work of civil servants working to improve the system.

Despite its willingness to shelter refugees, Canada is not a leader when it comes to preventing and eliminating statelessness. Canada has played, at best, a lackluster role in protecting the world's stateless population, and at worst, an active role in turning its back on one of the most vulnerable groups of persons. Although Canada is a multicultural state that adheres to many international human rights instruments and espouses its dedication to the rule of law and key principles of refugee law, statelessness is an issue that eludes its legal and political institutions.

Stateless persons are falling through the cracks. Neither international nor Canadian legal frameworks have prevented, diminished, or solved statelessness. States have perceived statelessness as a legal issue but refugees as a humanitar- - As a result, the plight of stateless persons is approached as a matter of proper construction of law. As will be discussed below, stateless persons not only - have few legal avenues to obtain citizenship but also face numerous barriers in the available pathways to citizenship.

The Canadian example provides a cautionary tale of how state practice is diminishing the legal definition of statelessness and closing off legal prospects for acquiring citizenship. Normatively, the Canadian approach to statelessness reinforces the idea that the state has the ultimate say on who its members are, and that authority overrides any other right or obligation that may exist in relation to a person who has no citizenship whatsoever.

This essay asks readers to contemplate how we must go beyond law to interrogate how to get past the state's prerogative right to deny stateless persons. While this piece does not provide an answer, a greater understanding of how states hide behind the legal scaffolding meant to stave off statelessness can generate future discussions.

The Schism Between Refugees and Stateless Persons in the Law

In 1951, in the wake of World War II, states convening at the United Nations aspired to build the ideal framework to prevent the mass deportation and displacement of Europeans-an agreement that became the Refugee Convention. The Convention will be commemorating its 70th birthday next year, and there is much to celebrate.4 This international legal instrument cemented the definition of who constitutes a refugee in customary international law and established the principle of non-refoulement, i.e., that a person should not be returned to a place where they face persecution or torture.5 But the Refugee Convention is not a perfect legal tool. Its definition of refugees is limited and open to problematic interpretation, and there are still many states that are not party to it and consequently do not provide a domestic protection framework. …

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