JANE McADAM
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.003.0003
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
JANE McADAM
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.003.0001
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0001
- Subject:
- Law, Human Rights and Immigration
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 ...
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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.Less
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.
Jane McAdam
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.001.0001
- Subject:
- Law, Public International Law
This book considers the legal obligations countries have to people who do not meet the legal definition of a ‘refugee’, but who have been forcibly displaced from their homes. This is known as ...
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This book considers the legal obligations countries have to people who do not meet the legal definition of a ‘refugee’, but who have been forcibly displaced from their homes. This is known as ‘complementary protection’, because it complements the central international instrument in this area, the 1951 Refugee Convention. 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 that may give rise to a claim for international protection. 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.Less
This book considers the legal obligations countries have to people who do not meet the legal definition of a ‘refugee’, but who have been forcibly displaced from their homes. This is known as ‘complementary protection’, because it complements the central international instrument in this area, the 1951 Refugee Convention. 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 that may give rise to a claim for international protection. 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.
JANE McADAM
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.003.0006
- Subject:
- Law, Public International 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 ...
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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.Less
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.
Antônio Augusto Cançado Trindade
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199580958
- eISBN:
- 9780191728785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580958.003.0006
- Subject:
- Law, Human Rights and Immigration
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 ...
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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.Less
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.
JANE McADAM
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.003.0004
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Carlo Carraro and Domenico Siniscalco
- Published in print:
- 1997
- Published Online:
- October 2011
- ISBN:
- 9780198292203
- eISBN:
- 9780191684883
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198292203.003.0009
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This chapter discusses the details of the international protection of the environment, citing the voluntary agreements among the different sovereign countries. The chapter states that a large ...
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This chapter discusses the details of the international protection of the environment, citing the voluntary agreements among the different sovereign countries. The chapter states that a large quantity of pollutants is discharged into the environment as a result of human activity in each country. Also, the transportation of pollutants in the environmental media is a source of substantial interdependence among countries: each country benefits from using the environment as a receptacle for emissions and is also damaged by environmental degradation. The chapter presents a general framework with which to analyze the profitability and stability of international agreements to protect the environment in the presence of trans-frontier or global pollution. The chapter also discusses the profitability and stability of the countries and explains the main results and the policy implications.Less
This chapter discusses the details of the international protection of the environment, citing the voluntary agreements among the different sovereign countries. The chapter states that a large quantity of pollutants is discharged into the environment as a result of human activity in each country. Also, the transportation of pollutants in the environmental media is a source of substantial interdependence among countries: each country benefits from using the environment as a receptacle for emissions and is also damaged by environmental degradation. The chapter presents a general framework with which to analyze the profitability and stability of international agreements to protect the environment in the presence of trans-frontier or global pollution. The chapter also discusses the profitability and stability of the countries and explains the main results and the policy implications.
JANE McADAM
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780199203062
- eISBN:
- 9780191724169
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203062.003.0008
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Seline Trevisanut
- Published in print:
- 2014
- Published Online:
- May 2014
- ISBN:
- 9780198708537
- eISBN:
- 9780191779497
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198708537.003.0005
- Subject:
- Law, EU Law, Human Rights and Immigration
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. ...
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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.Less
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.
Susan J. Henders
- Published in print:
- 2015
- Published Online:
- March 2015
- ISBN:
- 9780199676583
- eISBN:
- 9780191757211
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199676583.003.0011
- Subject:
- Political Science, International Relations and Politics, Political Theory
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 ...
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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.Less
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.
Nina H. B. Jørgensen
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198298618
- eISBN:
- 9780191685491
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298618.003.0008
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Sean Woolfrey
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198738428
- eISBN:
- 9780191801723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738428.003.0012
- Subject:
- Law, Public International Law, Environmental and Energy Law
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 ...
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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.Less
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.
Sarah Song
- Published in print:
- 2018
- Published Online:
- October 2018
- ISBN:
- 9780190909222
- eISBN:
- 9780190909253
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190909222.003.0008
- Subject:
- Political Science, Political Theory
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 ...
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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.Less
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.
Giorgio Sacerdoti
- Published in print:
- 2016
- Published Online:
- April 2016
- ISBN:
- 9780198738428
- eISBN:
- 9780191801723
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198738428.003.0002
- Subject:
- Law, Public International Law, Environmental and Energy Law
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 ...
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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.Less
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.
