Contents. Tables of Cases Table of Treaties and Other International and Regional Instruments Selected Abbreviations Online Resource Centre

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1 Tables of Cases Table of Treaties and Other International and Regional Instruments Selected Abbreviations Online Resource Centre xxv xliii xlix lv Chapter 1 The Refugee in International Law 1 1. Introduction 1 2. The refugee in international law and the practice of the United Nations Security Council 5 3. The refugee in national and international law 7 4. Protection 9 PART 1: REFUGEES Chapter 2 Refugees Defined and Described Refugees Refugees defined in international instruments Refugees for the purposes of the United Nations Statute of the United Nations High Commissioner for Refugees (UNHCR) Development of the statutory definition and extension of the mandate Responsibility for internally displaced persons Refugees in the sense of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees Regional approaches to refugee definition Refugees in municipal law: some examples Institutional responsibilities and international obligations Refugees for the purposes of general international law 49 Chapter 3 Determination of Refugee Status: Analysis and Application Respective competence of UNHCR and of States parties to the Convention and Protocol Determination of refugee status by UNHCR 53

2 xvi Contents 3. Determination of refugee status by States The 2004 European Union Qualification Directive The goal of common criteria The refugee definition and the reasons for persecution General matters Good faith and activities in the country of refuge Statelessness Reasons for persecution Race Religion Nationality Membership of a particular social group The concept develops The categories of association Common victimization Women, social group, and refugee status A social view of social group Political opinion Persecution: Issues of interpretation and application Protected interests The ways and means of persecution Persecution as a crime in international law Agents of persecution Agents of persecution and State responsibility Fear, intent, motive, and the rationale for persecution Persecution and laws of general application Conscientious objectors The right of conscientious objection The right to object to participation in conflict condemned by the international community The nature of the dispute between the individual and the State Sepet and Bulbul Political and non-political offenders Persecution and situations of risk Internal flight alternative Flight from civil war The individual and the group Children as asylum seekers and refugees Persecution and lack of protection 131

3 xvii Chapter 4 Loss and Denial of Refugee Status and its Benefits Voluntary acts of the individual Change of circumstances Continuing status in exceptional circumstances Interpretation and application Protection or assistance by other States or United Nations agencies The country of first asylum principle Refugees receiving United Nations protection and assistance Historical background Interpretation and application An alternative interpretation Article 1D and the future Other refugees not considered to require international protection Exclusion from refugee status Crimes against peace, war crimes, and crimes against humanity The drafting history of article 1F(a) The scope of article 1F(a) Crimes against peace War crimes Crimes against humanity Individual responsibility Serious non-political crimes The drafting history of article 1F(b) The relation to extradition Serious and non-political Context and proportionality Acts contrary to the purposes and principles of the United Nations The drafting history of article 1F(c) The purposes and principles of the United Nations Individuals acting on behalf of the State Article 1F(c) in brief The 2004 European Union Qualification Directive Terrorism, refugees, and the purposes and principles of the United Nations 191 PART 2: ASYLUM Chapter 5 Non-Refoulement in the 1951 Refugee Convention Evolution of the principle Relation of the principle of non-refoulement to particular issues Admission and non-rejection at the frontier 206

4 xviii Contents 2.2 Conventions and agreements Declarations and resolutions The UNHCR Executive Committee Conclusions on international protection State views and State practice State views State practice: some aspects The scope of the principle of non-refoulement Personal scope The question of risk Exceptions to the principle of non-refoulement Time and place, ways and means Extraterritorial application International zones Non-refoulement and extradition Non-refoulement and expulsion Non-refoulement and illegal entry Measures not amounting to refoulement Stowaways Arrival of asylum seekers by boat Internal waters and the territorial sea The contiguous zone The consequences of enforcement action Rescue-at-sea 277 Chapter 6 Protection under Human Rights and General International Law The meaning of complementary protection The history of complementary protection Complementary protection at the international level Human rights treaties: some procedural considerations The 1984 Convention against Torture (CAT84) The 1966 International Covenant on Civil and Political Rights (ICCPR66) What rights are protected? The 1950 European Convention on Human Rights (ECHR50) Article Socio-economic rights Other protected rights Article 8: family life Article 8: private life Article 13: remedies The 1989 Convention on the Rights of the Child (CRC89) The 2004 European Union Qualification Directive 325

5 xix 5. Status and exclusion from status Non-refoulement in cases of mass influx and the development of temporary protection Mass influx and non-refoulement Some aspects of State practice Temporary protection Status Non-refoulement through time? Non-refoulement as a principle of customary international law 345 Chapter 7 The Concept of Asylum Introduction Asylum in international conventions, other instruments, and acts Asylum in regional agreements Obstructing asylum: trends in State practice Access Interception Non-arrival policies Visa regimes Pre-entry clearance and carrier sanctions International law responses The right to leave any country Article 31 of the 1951 Convention State responsibility for extraterritorial acts Good faith Non-admission policies: the safe country and the concept of effective protection Jurisdictional issues: identifying the State responsible for determining a claim The safe country mechanism Effective protection The 2005 European Union Procedures Directive Safe country notions elsewhere Readmission agreements Extraterritorial processing Standards of treatment of asylum seekers and refugees Conclusion 414 PART 3: PROTECTION Chapter 8 International Protection International institutions The Office of the United Nations High Commissioner for Refugees (UNHCR) 426

6 xx Contents Relation of UNHCR to the General Assembly and its standing in general international law The United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) Strengthening coordination The complementary role of UN agencies Other international and intergovernmental organizations and agencies International Organization for Migration (IOM) International Committee of the Red Cross (ICRC) Regional organizations Non-governmental organizations (NGOs) The protection of refugees in international law General international law Treaties and municipal law The principle of good faith Palestinian refugees: nationality, statelessness, and protection 458 Chapter 9 Protection and Solutions General protection issues Detention Detention and mass influx Refugee rights in camps and settlements Personal security and related measures Refugees and asylum seekers Women refugees Child refugees Relief workers Internally displaced persons (IDPs) Solutions Local integration Voluntary repatriation Facilitating and promoting Safe return Resettlement Assistance and development International cooperation 502 Chapter 10 Treaty Standards and their Implementation in National Law The 1951 Convention and the 1967 Protocol relating to the Status of Refugees Required standards of treatment 509

7 xxi 1.2 Standards applicable to refugees as refugees Administrative assistance: article Identity documents: article The Convention Travel Document: article Treatment of refugees entering illegally: article Expulsion of refugees: article Non-refoulement: article The criteria of entitlement to treatment in accordance with the Convention Simple presence Lawful presence Lawful residence Habitual residence Protection in national law: the refugee status determination procedure General standards for the determination of refugee status The role of UNHCR in national procedures Due process in the determination of refugee status Appeal or review The 2005 European Union Procedures Directive Organization of the Procedures Directive Process in refugee status determination: getting to Yes ; getting to No The interview, examination, or hearing Uses and abuses of country and other information Assessing credibility and drawing inferences from the evidence The status of refugees and the termination of refugee status in national law Refugee status and the opposability of decisions The principle of acquired rights Afterword 555 ANNEXES Table of Contents 557 Annexe 1 Basic Instruments Constitution of the International Refugee Organization Extracts Universal Declaration of Human Rights Extracts Statute of the Office of the United Nations High Commissioner for Refugees Convention relating to the Status of Refugees Protocol relating to the Status of Refugees United Nations Declaration on Territorial Asylum 592

8 xxii Contents United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Extracts United Nations Convention on the Rights of the Child Extracts Constitution of the International Organization for Migration Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees 607 Annexe 2 Selected Regional Instruments Convention on the Specific Aspects of Refugee Problems in Africa African Charter on Human and Peoples Rights Extracts Caracas Convention on Territorial Asylum Caracas Convention on Diplomatic Asylum American Convention on Human Rights Extracts Inter-American Convention on Extradition Extracts Cartagena Declaration on Refugees European Convention on Human Rights and Fundamental Freedoms Extracts Protocol No. 4 to the European Convention on the Protection of Human Rights and Fundamental Freedoms Extracts European Convention on Extradition Extracts Additional Protocol to the European Convention on Extradition Extracts European Convention on the Suppression of Terrorism Extracts European Union Charter of Fundamental Rights Extracts European Union Council Directive on Temporary Protection European Union Council Common Position on Combating Terrorism European Union Council Directive on the Reception of Asylum Seekers European Union Council Regulation on the Criteria and Mechanisms for Determining the Member State responsible for Examining an Asylum Application European Union Council Directive on the Right to Family Reunification European Union Council Directive on Qualification and Status as Refugees or Persons otherwise in need of International Protection 691

9 xxiii European Union Council Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status 709 Annexe 3 States Parties to the 1951 Convention, the 1967 Protocol, and the 1969 OAU Convention; Delegations Participating in the 1984 Cartagena Declaration; and Members of the Executive Committee of the High Commissioner s Programme (at 31 January 2007) States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol States Parties to the 1969 OAU Convention Government Delegations participating in the 1984 Cartagena Declaration States Members of the Executive Committee of the High Commissioner s Programme 741 Select Bibliography 743 Index 773

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