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Vol 21 No 11 Nov/Dec 2016

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Complementary Protection in International Refugee Law 1st ed


ISBN13: 9780199203062
Published: February 2007
Publisher: Oxford University Press
Country of Publication: UK
Format: Hardback
Price: £82.00



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This book represents an exciting new contribution to the field of refugee law and human rights law. It considers the legal obligations which countries have to people who do not meet the legal definition of a 'refugee', but who have nonetheless been forcibly displaced from their homes, whether due to war, generalized violence, humanitarian disaster or torture, inhuman or degrading treatment or punishment. This is known as 'complementary protection', because it complements the central international instrument in this area, the 1951 Refugee Convention. The book analyses international human rights law to discern where such legal obligations to protect might arise, and considers the legal status which countries ought to provide to such people. It provides a comprehensive overview of States' current responses to this issue, and offers original and thoughtful suggestions for protecting such persons within the international legal framework. This book is the first dedicated study on 'complementary protection' - the protection afforded by States to persons who need international protection but fall outside the legal definition of a refugee in article 1A(2) of the 1951 Refugee Convention. Human rights law has extended States' international protection obligations beyond the Refugee Convention, preventing States from removing individuals who would be at risk of serious harm if returned to their countries of origin. While a number of States have traditionally respected these additional human rights obligations, they have been reluctant to grant beneficiaries a formal legal status analogous to that enjoyed by Convention refugees. This book provides a comprehensive analysis of complementary protection, from its historical development through to its contemporary application. By examining the human rights foundations of the Convention, the architecture of Convention rights, regional examples of complementary protection, and principles of non-discrimination, the book argues that the Convention acts as a type of lex specialis for persons in need of international protection, providing a specialized blueprint for legal status, irrespective of the legal source of the protection obligation.

Chapter 1 identifies pre-1951 examples of complementary protection, demonstrating how the content of the status afforded to extended categories of refugees was historically the same as that granted to 'legal' refugees. It traces unsuccessful attempts at the international and European levels to codify a system of complementary protection, prior to the EU's adoption of the Qualification Directive in 2004 and international support for an ExCom Conclusion in 2005. The Qualification Directive, examined in Chapter 2, represents the first supranational codification of complementary protection, but is hampered by a hierarchical conceptualization of protection that grants a lesser status to beneficiaries of 'subsidiary protection' vis-à-vis Convention refugees. Chapters 3 to 5 examine a number of human rights treaties (CAT, ECHR, ICCPR and CRC) to identify provisions which may give rise to a claim for international protection. Finally, Chapter 6 illustrates why all persons protected by the principle of non-refoulement should be entitled to the same legal status as refugees, demonstrating the Refugee Convention's role in providing a rights blueprint for beneficiaries of complementary protection.

  • The first dedicated study of the protection offered to asylum seekers who fall outside the legal definition of a refugee
  • Traces the historical development of the legal framework from its origins before the 1951 Refugee Convention through to its contemporary application, illustrated with regional examples
  • Examines unsuccessful international and European attempts to codify a system of complementary protection prior to the EU's adoption of the Qualification Directive in 2004

Subjects:
Public International Law, Immigration, Asylum, Refugee and Nationality Law
Contents:
Table of Treaties and Statutes
Table of Cases
Abbreviations
INTRODUCTION
1. The Evolution of Complementary Protection
Introduction
Defining Complementary Protection
The 1951 Refugee Convention
Complementary Protection and International Law
Conclusion
2. The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime
Creation of the Qualification Directive
The Directive's Subsidary Protection Regime
Subsidiary Protection Exclusion Clauses
The Content of International Protection: Substantive Rights
'Minimum Standards' - a Harmonized Approach?
Conclusion
3. An Alternative Asylum Mechanism: The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Introduction
The Structure of the CAT
Torture Prohibition in Domestic Complementary Protection
Conclusion
4. The Scope of Ill-Treatment under the ECHR and ICCPR
Introduction
The ECHR and Asylum
Unqualified Rights
Qualified Rights
Protection for Socio-Economic Reasons
The International Reach of the ECHR
Conclusion
5. Protection and 'The Best Interests of the Child': The Convention on the Rights of the Child
Introduction
Special Protection of Children Under International Law
The Convention on the Rights of the Child
'The Best Interests of the Child' - Article 3
The Weight to be Given to the Child's Best Interests
Jurisprudence on 'The Best Interests of the Child'
Conclusion
6. The Legal Status of Persons to Whom the Refugee Convention Does Not Apply
Introduction
The Importance of Status
The Convention as a Lex Specialis and its Significance for Status
The Architecture of the Refugee Convention
Categories of Rights
Minimum Standards of Treatment for Non-Removable Persons
Conclusion
CONCLUSION
BIBLIOGRAPHY

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