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The concept of subsidiary protection was defined by the Austrian Presidency in 1998 as protection for persons from third states who do not fall within the scope of the Geneva Convention but who still have need of some other form of international protection. It was distinguished from temporary protection on the basis that it was granted following individual status determination, whereas temporary protection, at least in the EU context, denotes protection granted in a mass influx situation. A summary of EU subsidiary protection practices in February 1999 noted that all Member States had some form of subsidiary protection applied in parallel with Convention protection, but its nature varied considerably.

The concept of complementary protection is plagued by imprecision. Like the term ‘refugee’, complementary protection' has both a formal legal meaning as well as a more generic one. This book seeks to develop a normative framework for identifying the boundaries of complementary protection in international law; examine the meaning of complementary protection in context; and consider who is eligible for complementary protection and what the content of that status should be. The book argues that the Refugee Convention functions as a form of lex specialis (specialist law) for all those in need of international protection, and provides an appropriate legal status irrespective of the source of the States protection obligation.

One of the most important contributions of the international legal doctrine along the last six decades has been the rescue of the individual as subject of the law of nations. Such contribution is of historical significance. The individual's presence and participation has been growing in the international legal order. The international legal personality of individuals has been asserted before organs of international supervision of his rights, and his international legal capacity has consolidated before international legal tribunals (e.g., European and Inter-American Courts) of human rights. The individuals’ legal subjectivity is beyond question in contemporary international law.

The safeguard and preservation of the integrity of international jurisdiction are of the utmost importance for assuring the access of individuals to international justice. In recent years, both the European and Inter-American Courts of Human Rights have put limits to State voluntarism and thereby safeguarded the integrity of the respective international mechanisms of human rights protection, duly preserved, to the benefit of the alleged victims.The direct access of individuals to international justice is also manifested in provisional measures of protection, in so far as the preventive dimension is concerned. It further encompasses, in proceedings on contentious cases, the safeguard of the guarantees of the due process of law.

The near-universal ratification1 of the Convention on the Rights of the Child (CRC) underscores its authority as a set of international norms setting down the minimum rights which States owe to children. This chapter argues that the best interests of the child, reflecting an absolute principle of international law, are highly relevant in determining whether or not a child needs international protection. The principle applies to any protection claim concerning children, irrespective of whether they are unaccompanied, accompanied by family members (even where the child is not the primary applicant), or seeking family reunion. In conjunction with the principle of family unity in article 9 CRC, best interests are also relevant to removal cases which will personally affect a child, such as where the State seeks to deport a parent.

This chapter reviews both aspects of CAT-based complementary protection. The former constitutes complementary protection in its widest sense, granted on the basis of an international protection need outside — ‘complementary to’ — the Refugee Convention framework. It may be based on another human rights treaty, such as the CAT, or on more general principles, such as providing assistance to persons fleeing from generalized violence (through the expansion of the principle of non-refoulemeni). The second part turns to codified complementary protection based on torture. By contrast to the EU Qualification Directive, which contains three ‘subsidiary protection grounds, non-refoulement in the US extends only to non-removal to torture, and in Canada to torture or cruel or unusual treatment or punishment.

Private International Family Law has been challenged by the impact of recent social changes. Such an impact is shaped by an increasing globalization, new types of families, and, especially, technology and biomedical developments. Some of the new complex situations call for the creation of original solutions. Latin American countries are making efforts to gradually include in their domestic Private International Law provisions that capture this scenario. However, some international treaties still in force in the region were drafted many years ago, reflecting cultural, religious and social conceptions which have been outgrown by new realities and principles nowadays prevailing. This chapter shows some of the difficulties, possibilities and challenges that the most relevant multilateral legal instruments currently face in Latin America. It also explores and highlights the work of several international bodies in order to achieve the international protection of families and, in particular, to guarantee the rights of children.

By retaining the political discretion to determine to whom, and when, protection will be granted, States have in fact complicated the protection regime. Diverging statuses, different eligibility thresholds, and variations from State to State have created incentives for asylum seekers to forum-shop and appeal decisions granting subsidiary status. It is arguably in States' own interests to grant a single legal status based on the Convention to all persons in need of international protection, with the exception of persons whom the Refugee Convention expressly excludes.

In the post-World War II period, business leaders, bankers, and their lawyers decided it was their time to write the rules of the global economy. They felt that the nationalization of the Anglo-Iranian Oil Company (in 1951) and of the Suez Canal (in 1956), together with increasing state economic intervention all around the world, warranted a call for action. They formed a coalition to enable and safeguard a world of free enterprise; promoting and protecting foreign private investment was a top priority. This chapter examines who these norm entrepreneurs were, their networks, and how they captured the space of international investment law to advance their world-making project. As individuals and through professional associations, they imagined quite detailed institutions and standards for this legal field. They discussed foreign investor rights, indirect expropriation, fair and equitable treatment, the internationalization of contracts, reliance, the inadequacy of local remedies, and the crucial role of international arbitration.

This chapter analyses and comments on the legal framework regulating Frontex activities and the relevant practice in order to assess their compliance with international protection obligations. Analysis of the composition and functions of Frontex highlights how European Union (EU) member states still control the decision-making process and the operative activities. The review of the relevant practice (with a focus on Frontex joint operations) shows how participating states violate, or may violate, obligations deriving from human rights and asylum law. This chapter affirms that there is currently a political and legal momentum for directing EU policy in the fields of irregular immigration and external borders towards an enhanced respect and enforcement of international protection obligations, and towards better governance of EU external borders.

This chapter discusses the concept of obligations erga omnes and the essential distinction between obligations erga omnes and other obligations of international law. It also describes the obligations giving rise to responsibility erga omnes. Some indications as to which obligations qualified as obligation erga omnes include contemporary rights of protection, including protection from slavery and racial discrimination. Consequently, rights of international protection may be divided into two categories: those which are conferred by ‘international instruments of a universal or quasi-universal character’ and those which have entered into the body of general international law.

Many recent commentators have seen the League of Nations as a ‘golden age’ of international minority rights commitments. This chapter argues, however, that the 1919–24 decisions of international diplomats were motivated less by a principled commitment to justice for minorities than by a particular conception of world order. This conception saw selective international supervision of minority protection as necessary to prevent interstate war and respond to the exigencies of a civilizational and power hierarchy amongst peoples and states, while also advancing the particular politico-economic interests of the Principal Allied Powers. The result was support for internationally guaranteed territorial autonomy for a few minorities, but rejection of the claims of others and of the entrenchment of universal minority rights in the League Covenant. The early years of the League minority protection system has lessons for today’s debates about the place of minority rights within the post-cold-war order.

Having undertaken a review of its bilateral investment treaties (BITs) and their impact on domestic policy space, the South African Government has begun terminating these treaties and has indicated that it will refrain from entering into BITs in the future, except where there are compelling economic reasons to do so. In their place the Government is developing legislation that will offer certain BIT-type protections to foreign and local investors, but will also ensure that the Government’s capacity to regulate in the public interest is adequately safeguarded. As this chapter shows, however, the standard of investment protection likely to be found in this legislation falls some way short of that found in customary international law and in those BITs that the Government is currently in the process of terminating.

This contribution is the introduction to the volume. As such this chapter reviews the concept of ‘sustainable development’ from the original underlying economic perspective and in the light of the international policy statements that have recognized it, looking at its variable legal content, highlighting the primary responsibility of local governments. International ‘protection’ granted to foreign investors reflects the idea that direct investment from abroad is good for development. Bilateral Investment treaties (BITs) have evolved through the decades, recognizing the need to balance the granting of protection with the freedom for host governments to pursue freely chosen development policies. They remain, however, by nature ‘static’, not instruments of flexible cooperation although their role could be enhanced.

Intellectual property is often said to be an invention of the nineteenth century. It is true that the importance of incentivizing innovation and encouraging investment in creative activities was recognized on a general scale only in the wake of industrialization, leading to the enactment in many countries of patent laws, modern-style copyright laws, or industrial design laws. Before that, protection for those achievements had only been granted in the form of privileges, serving the interests of particular trades or professions, and ultimately those of the sovereign. The period of industrialization also saw the emergence of the first trade mark laws in the modern sense that entitled the proprietors of such marks to enjoin others from using the same marks or a similar sign for their own products.

Chapter 7 considers the substance of immigration policy. It argues that the duty to protect refugees and other forcibly displaced migrants is a moral constraint on the state’s right to control immigration. The chapter examines the grounds of the obligation toward refugees, who should be regarded as a refugee, what the duty to assist refugees entails, how the duty should be shared among states, and what the limits on the duty to refugees might be. It concludes by considering some implications for contemporary policy toward refugees.