International Journal of Refugee Law Advance Access originally published online on October 27, 2009
International Journal of Refugee Law 2009 21(4):742-767; doi:10.1093/ijrl/eep024
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Protection of Stateless Persons in International Asylum and Refugee Law
* Kate Darling is a lawyer with the Legal and Constitutional Law Division of the Government of Nunavut in Canada
International refugee law is a mechanism whereby States deal with persons seeking asylum within their borders. While this area of law has its roots in international human rights concepts, it has been influenced by less noble forces over the years. This article looks at how interactions between international human rights law, international relations and domestic decision making have impacted the ability of international refugee law to protect one of the most powerless groups, namely, stateless people.
By exploring the analytical approaches applied by the Courts in the United Kingdom, the United States, Canada, Australia and New Zealand, this article attempts to demonstrate the ways in which stateless persons have been excluded from effective international human rights protection. Specifically, the article argues that states have not considered their own human rights obligations when making individual refugee status decisions. Further, it observes that, in some cases, decision makers have tended to refer to international compendia on international refugee law and international human rights law rather than to reflect directly on the law itself. This in turn has encouraged an increasingly restrictive approach to refugee determination.
In its conclusion, this article offers suggestions for reintegrating the foundations of international human rights law into claim determinations for stateless persons. It suggests that a return to first principles and foundational concepts will realign the implementation of international refugee law with its intended purpose: the protection of the world's most vulnerable people.