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.
By:
Jane McAdam ( Associate Professor University of New South Wales)
Imprint: Oxford University Press
Country of Publication: United Kingdom
Dimensions:
Height: 240mm,
Width: 160mm,
Spine: 26mm
Weight: 656g
ISBN: 9780199203062
ISBN 10: 0199203067
Series: Oxford Monographs in International Law
Pages: 322
Publication Date: 15 April 2007
Audience:
College/higher education
,
Professional and scholarly
,
Professional & Vocational
,
A / AS level
,
Further / Higher Education
Format: Hardback
Publisher's Status: Active
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
Dr Jane McAdam is a lecturer in law at the University of Sydney. Prior to assuming that appointment in 2005, she held a law lectureship at Lincoln College, University of Oxford, where she undertook her doctorate on complementary protection in international refugee law. Dr McAdam is the co-author with Dr Guy S Goodwin-Gill of the forthcoming third edition of The Refugee in International Law (OUP Oxford 2006), and has published widely in the areas of international human rights law, refugee law and history. She has worked on a variety of projects with UNHCR, the European Union, the Czech-Helsinki Committee, Amnesty International, the Refugee Council of Australia and the Refugee Studies Centre at the University of Oxford. She is the former General Editor of the Oxford University Commonwealth Law Journal and is currently a member of the Editorial Board of the Sydney Law Review. She is also a member of the Management Committee of the Refugee Advice and Casework Service in Sydney.
Reviews for Complementary Protection in International Refugee Law
`This book is a laudable project, because it addresses an issue which is important both for practise and for theory...In sum, McAdam's book draws attention to an important issue. It is full of relevant information and insights. Food for thought - but at some points a bit too al dente.' Netherlands Quarterly of Human Rights, Vol. 27/3 (2009)
