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The “Erga Omnes” of the Protection of Fundamental Human Rights and the “Complementary Protection” of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees
April 08,2019   By:CSHRS
The “Erga Omnes” of the Protection of Fundamental Human Rights and the “Complementary Protection” of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees
 
SUN Xu*
 
Abstract: The United Nations Convention Relating to the Status of Refugees 1951 and its Protocol in 1967 set Four Essentials to limit the definition of “refugee”. The concept of complementary protection emerged in academia and practice for those who, though they do not have the essentials, are in need of protection. Complementary protection is considered not only a moral obligation, but also a legal obligation. Although as the result of developing the principle of “non-refoulement” in international law, “complementary protection” should be limited when economic and social rights are concerned. The development of the non-refoulement principle and the emergence of “complementary protection” are based on the Erga Omnes of human rights. The International Court of Justice has restricted the emergence and evolvement of obligations Erga Omnes within the scope of obligations concerning fundamental and non-derogable human rights, and therefore, the application of “complementary protection” in protecting economic and social rights has been limited. Only when the unbalance of economic and social rights has been serious enough to impact other fundamental human rights will the obligation of “complementary protection” ensue.
 
Keywords: Refugee, complementary protection, Obligation Erga Omnes, fundamental human rights, the principle of non-refoulement
 
As stipulated in the Convention Relating to the Status of Refugees in 1951 and its Protocol in 1967, the term “refugee” is narrowly defined, i.e., to those persons who meet the four essentials1 set out in the Convention. Thus, those who are displaced from their homes due to natural disasters, armed conflict, backward economy and such fail to be included as “Convention Refugees” considering the lack of the essential “oppression”, and are classified as refugees not prescribed by the Convention. However, these suffering natural disasters and civil war or whose lives’ are at peril are also in urgent need of help to make a living, so the theory on “non-refoulement” to refugees not prescribed by the Convention emerged. This triggered the theoretical development of “complementary protection”2 that was put into practice in Directive on the Minimum Qualifications and Status of Nationals from a Third Country or Stateless Applying to be Refugees or Seeking International Protection of the European Union in 2004. “Complementary Protection” is a bridge linking the International Law on Refugees, International Law on Migration and International Law on Human Rights,3 and for implementation, the principle of “non-refoulement” is required to be applied to refugees not prescribed by the UN for the Convention Relating to the Status of Refugees. The emergence and development of Obligation Erga Omnes, particularly that related to the protection of fundamental human rights, has promoted the “complementary protection” for the refugees not prescribed by the Convention. It should be noted that the International Court of Justice of the United Nations is very cautious in defin-ing the Obligation Erga Omnes, limiting it to the protection of the most fundamental human rights. Therefore, a state should take the scope of Obligation Erga Omnes for reference in defining which foreigners should be given complementary protection.
 
I. “Obligation Erga Omnes” of Protecting Fundamental Human Rights
 
The Erga Omnes Obligations in international law were proposed decades ago by the International Court of Justice of the United Nations in a judgment that received widespread attention and recognition, and which has been widely popularized. There have been a large number of international practices, court decisions and academic researches related to Erga Omnes Obligations since. They are also known as “obligations to all” or “obligations to the whole international community”, and translated as “universal obligations” or “obligations to all” in some documents. This paper adopts the version of Erga Omnes Obligations. Erga Omnes Obligations emphasize that abiding by certain international obligations will fulfill the interests of the entire international community. This paper reviews the interpretation and supplement of the concept of Erga Omnes Obligations made by the International Court of Justice.
 
A. The emergence and development of “Obligation Erga Omnes” in the practice of the International Court of Justice
 
The concept of Erga Omnes Obligations was first proposed by the International Court of Justice in 1970 in the case of Barcelona Traction, Electric Light and Power Company (hereinafter referred to as “the Barcelona Traction case”), to distinguish it from obligations under the rules of diplomatic protection in international law. According to the legal statement of the International Court of Justice, Erga Omnes Obligations apply to the international community as a whole and the protection of Erga Omnes rights is of interest to and obligation of all states and of concern to all states.4 The International Court of Justice then stated, by way of enumeration, that in modern international law the obligation to avoid aggression and genocide, with principles and rules relating to fundamental human rights (including the prohibition of slavery and racial discrimination) is an Erga Omnes Obligation. Based on this, the Court distinguished the two obligations and determined that in this case, only the country where the company registered has the right of relief through diplomatic protection, and no other country can make appeals on behalf of the company. However, there would be no such limitation for Erga Omnes Obligations.5
 
Erga Omnes Obligations are different from the concept of bilateral obligations in traditional international law, reflecting the changing trend of current international law.6 Traditional international law is enacted on the basis of reciprocity, and the rights and obligations of states are relative.7 An Erga Omnes Obligation is universal, binding on all countries, and its fulfillment is beneficial to all countries in the international community. However, traditional international social relations are bilateral. According to the bilateralism of traditional international law, a country’s request for another country to fulfill a specific obligation must be on the premise that it has the subject interests recognized by law.8
 
The concept of Erga Omnes Obligations proposed by the International Court of Justice reflects the structural change of international legal rules, attracting the high attention of scholars. The International Court of Justice plays a crucial role in the development of the concept of Erga Omnes Obligations.9 In subsequent practice, the International Court of Justice held that the rights of self-determination, freedom from genocide and ill-treatment of colonial people have the characteristics of Erga Omnes Obligations, and the obligation securing these rights is an Erga Omnes Obligation.10 In the advisory opinion in the “case of a separation wall” in 2004, the International Court of Justice reiterated its statement in the “Barcelona Traction case”, indicating the Erga Omnes nature of the right to self-determination.11 The obligation of eradicating genocide is included in Erga Omnes Obligations listed by the International Court of Justice in the Barcelona Traction case. In its preliminary ruling against the Applicable Case of the Convention on the Prevention and Punishment of the Crime of Genocide in 1996, the International Court of Justice further affirmed that the nature of the obligations under the Convention were Erga Omnes,12 and it reiterated that point in 2015.13 In 2012, the International Court of Justice, declared that the obligations on “prohibiting torture or taking measures to prosecute” in the Convention of Prohibiting Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment benefit all the contracting states, so although Belgium was not the nationality of the injured nationals, it was still eligible for prosecution because of its status as a state party endowed with related interests.14 This seems to include “prohibiting torture” as an Erga Omnes Obligation.
 
B. Restrictions of the International Court of Justice on Erga Omnes human rights
 
The International Court of Justice’s statement on Erga Omnes Obligations related to the “Barcelona Traction case” in 1970 was not the final judgment, nor are the “rules and principles relating to the fundamental human rights” under the protection of Erga Omnes Obligations, and the listed “freedom from slavery” and “freedom from racial discrimination” included in Erga Omnes Obligations by the Court. The connotations of Erga Omnes Obligations are therefore constantly developing and changing.15
 
However, after the concept of Erga Omnes Obligations was proposed in 1970, the International Court of Justice has been cautious about the statements and devel-opment of the concept. In several subsequent cases or advisory opinions, the Court repeatedly reviewed the classic statement in the “Barcelona Traction case” 1970 as the development of Erga Omnes Obligations, emphasizing that the key to Erga Omnes Obligations lies in the international community as a whole having interests in the re-alization of the protected rights, and the fulfillment of obligations being the focus of the international community. As mentioned above, in later practice, Erga Omnes Obligations were explicitly recognized by the International Court of Justice to cover the right to self-determination and freedom from genocide of colonial people. With regard to obligations, such as the prohibition of torture, environmental protection, etc., the Court did not mention Erga Omnes, although it considered such protection to be of interest to all states parties. Therefore, we can see that the International Court of Justice is very cautious about the identification of Erga Omnes Obligations. After all, in the Draft on National Responsibility of the International Law Commission, the original provisions and specific enumeration of “state crimes” were much criticized and deleted from the final draft. In the study of which human rights are Erga Omnes in the field of Human Rights Act, it shall not be ignored that the International Court of Justice has emphasized “fundamental human rights”, rather than all.
 
C. The embodiment of the protection of fundamental human rights as an Erga Omnes Obligation in the specific rules of international law
 
On the basis that the International Court of Justice limits Erga Omnes Obligations to the scope of fundamental human right”, the upholding of what human rights are Erga Omnes Obligations other than the “freedom from slavery” and “freedom from racial discrimination” enumerated by the International Court of Justice and the “right to self-determination ”and“ freedom from genocide later involved?
 
In the initial text of the Draft on National Responsibility, the obligations violated by “international crimes” are crucial to realizing the fundamental interests of the international community, which is consistent with the International Court of Justice’s identification of the nature of Erga Omnes Obligations. Moreover, there are some rights protected by such obligations listed in the initial text. Thus, although the initial reference to “international crimes” in the Draft on National Responsibility was removed from the final text, the focus on obligations targeted by “international crimes” helps to understand the category of rights protected by Obligation Erga Omnes. In the Draft on National Responsibility, the destruction of international peace and security, the right to national self-determination, fundamental human rights and human environment, which are of great significance to human society, were initially considered as “international crimes”.16
 
The scope of “fundamental human rights” is required to be recognized in combination of specific legislation on international human rights. The human rights which are generally stipulated in international conventions on human rights to be “non-derogable” under any circumstances are undoubtedly the hard-core human rights. The International Convention on Civil Rights and Political Rights stipulates in Article 4 that in the event of a state of emergency where a country is threatened, the country may reduce its obligations in the convention, but the right to life as stipulated in Article 6, the right to freedom from torture in Article 7, the right to freedom from slavery and forced labor in Article 8, the right not to be punished for failure in implementation in Article 11 and the right that the punishment is not retroactive in Article 15, the right of personality in Article 16, and the right to religious freedom in Article 18 are non-derogable. These non-derogable human rights are also reflected in regional conven-tions on human rights. For example, Article 4 and Article 6 of the European Convention on Human Rights stipulate that the right to freedom from slavery and forced labor is non-derogable, Article 7 stipulates that the criminal law is not retroactive, and the African Charter on Human Rights and National Rights has similar provisions.
 
These rights, which are deemed “non-derogable” in various the human rights conventions worldwide, are the rights to life, freedom from torture, slavery and forced labor, and freedom from ex post facto criminal law, and all have the nature of “non-derogable” in customary international law,17 which are regarded as fundamental human rights at the lowest level. Some scholars believe that such non-derogable fundamental human rights, which are unanimously recognized by the international community, such as the right to life, freedom from abuse and cruel, inhuman or degrading treatment and punishment, freedom from slavery and racial discrimination, and freedom from ex post facto criminal law, have a solid foundation, and that they are Erga Omnes nature is undoubted.18
 
II. Non-refoulement and Complementary Protection to Refugees not Prescribed by the UN CSR
 
A. The embodiment of the principle of non-refoulement in the laws and regulations on International Human Rights Law
 
The principle of non-refoulement, a core provision of the Convention in 1951, requires that any refugee identified by the convention shall not be deported or returned to territory where their life or freedom may be threatened.19 After the Convention in 1951, the principle of non-refoulement was stipulated and embodied in many international and regional conventions and declarations, such as Article 10 of the Convention on Refugee Seafarers 1957 and Article 2 of the Convention of the Organization of African Unity on Certain Issues of Refugees in Africa 1969. The Cartagena Declaration on Refugees in 1984 reaffirmed the landmark significance of the principle of non-refoulement in the protection rules on the international refugees as a whole.
 
At present, the principle of non-refoulement is not confined to the Convention Relating to the Status of Refugees,20 but provides protection for “refugees” who are not defined under the Convention but who meet certain conditions. Indeed, the principle is applicable not only in the International Refugee Law based on the 1951 Convention, but also in quite a few international rules on human rights. It is also an important principle in International Humanitarian Law and an inseparable part of International Hu-man Rights Law.21 Article 13 of the Universal Declaration of Human Rights of 1948 already recognized the right of “other asylum for all under persecution”. Paragraph 1, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires that a person shall not be expelled, deported or extradited if there is sufficient evidence that such a person would be subjected to torture in another country. The Convention on Children’s Rights also supports the implied non-refoulement obligations. Paragraph 8, Article 22 of the Convention on Human Rights of Inter-America makes it clear that a person whose life or liberty is threatened in a country due to race, nationality, status, religion or political opinion shall not be subject to deportation or repatriation. The United Nations Committee on the Rights of the Child states that the harm to children caused by lack of food and medical services cannot be remedied and thus children must not be returned to situations where irreparable harm or threat may exist.22 Although there is no well-defined stipulation on the principle of non-refoulement in the International Convention on Civil Rights and Political Rights, the United Nations Human Rights Council proposed that its Article 6 related to the protection of the right to life and Article 7 referring to freedom from torture or cruel, inhuman, degrading treatment imply the obligations that if there is sufficient evidence that irreparable harm would be made, no extradition, repatriation, or deportation would be allowed.23
 
B. The principle of non-refoulement in International Law avails the protection of fundamental human rights as Erga Omnes obligations
 
Paragraph 1, Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment implies an idea of international law that a country has “sufficient cause” not to send anyone to somewhere that may deny human rights recognized by international law. In judging the existence of the “sufficient cause” referred to in Paragraph 1, Paragraph 2 requires that serious and persistent violations of human rights in a country shall be taken into account. In the “case of the obligation on extradition or prosecution”, the International Court of Justice noted that each state party had an interest in the realization of the right to “freedom from torture”. From the statement by the International Court of Justice on the right to “freedom from torture”, it can be seen that the state party’s obligation to the realization of this right is consistent with the Erga Omnes Obligation stated by International Court of Justice in the Barcelona Traction case, which is of concern to the international community as a whole. Therefore, the right to “freedom from torture” may be considered to be a fundamental human right with an Erga Omnes Obligation for its protection. The obligation of non-refoulement stipulated in Article 3 of the Convention Relating to the Status of Refugees guarantees the realization of this fundamental human right as an Erga Omnes Obligation.
 
The foregoing interpretation that the Convention on the Rights of the Child and the International Convention on Civil Rights and Political Rights contain the obligation of non-refoulement is made by the corresponding human rights council or commission. Although the interpretation of the Convention by the UN Human Rights Council is not universally recognized as authoritative, and that by the Committee on the Rights of the Child is not legally binding, some countries have explicitly affirmed this principle in their domestic laws. For example, Canada’s Immigration and Refugee Protection Act stipulates that a person is “in need of protection” if his or her repatriation would result in the risk of being abused, life threatened or cruel and inhuman punishment,24 and the same protection as received by refugees shall be offered.
 
In international human rights law, the principle of non-refoulement is mainly em-bodied in the fields of freedom from torture, the right to life, freedom from inhumane treatment, etc. These rights have been recognized in the practice of the International Court of Justice and are the fundamental human rights with Erga Omnes Obligations. In international humanitarian law, the embodiment of the principle of non-refoulement further proves that the principle is centered on fundamental human rights.
 
The principle of non-refoulement, as an important part of international humanitarian law, and the principle takes the protection of fundamental human rights with Erga Omnes Obligations as the starting point. Although applicable to different situations, the international humanitarian law and the international human rights law are responsible for protecting human life, health and dignity. Although the former does not prescribe the combat methods and behaviors of combatants in armed conflicts as the latter does, both aim to protect human life, prohibit abuse or cruel treatment, forbid discrimination and uphold the fundamental human rights.25 The Common Article 3 of the “Fourth Convention of Geneva 1949” must be observed in both international and non-international armed conflicts, which guarantees the core fundamental human rights. These rights include the prohibition of violence against life and person, of murder, mutilation, torture and cruel, inhuman and degrading treatment, of hostage-taking, and of conviction and execution without trial, and provide judicial guarantees for all detainees. The rights protected by Common Article 3 are consistent with the aforementioned widely recognized and non-derogable fundamental human rights and are the embodiment of human rights with Erga Omnes Obligation in international humanitarian law. For example, Article 45 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Convention of Geneva 1949) stipulates the principle of non-refoulement, which reflects the connection between the principle of non-refoulement and the fundamental human rights with Erga Omnes Obligation.
 
C. The “Complementary Protection” to refugees not prescribed by the UN CSR
 
The obligation made by the Convention of International Human Rights Law to protect fundamental human rights rather than repatriate, extradite or deport promotes the application of the principle of non-refoulement beyond the scope of the 1951 Con-vention Relating to the Status of Refugees. The protection based on the principle of non-refoulement to the people not covered by the Convention Relating to the Status of Refugees or the 1967 Protocol is referred to as complementary protection or subsidiary protection.26 The UN High Commissioner for Refugees has made it clear that “many people who are not covered by the 1951 Convention may also need international protection and such protection will be provided “complementarily” to the 1951 Convention”.27 “For people who do not qualify as refugees under the 1951 Convention but do need protection,” the UN High Commissioner for Refugees advises, “‘complementary’ protection can be provided.”28 In the past decade, complementary protection has received wide attention from foreign academia and has been adopted in some countries.29
 
Before the concept of complementary protection was proposed, some countries offered assistance to refugees not prescribed by the Convention Relating to the Status of Refugees in consideration of humanity, but in recent decades the new development of international human rights law and international refugee law has made such is not only out of voluntary discretion, but based on existing obligations in international law.30 The reason why complementary protection has the obligation to provide pro-tection in international law is based on the application of the principle of non-refoulement.31 Therefore, the connotation of complementary protection shall be deter-mined in accordance with the content of the principle of non-refoulement.
 
By analyzing a series of conventions involving or containing the obligation of non-refoulement, it can be found that the provisions on the principle of non-refoulement in international human rights law are still limited to fundamental human rights, while the provisions on non-refoulement in International Humanitarian Law are more specific to the minimum protection of fundamental human rights. Therefore, the target and connotation of complementary protection should also start from the protection of fundamental human rights.
 
III. Restrictions on “Complementary Protection”: An Analysis Based on the Relevant Practices of the European Court of Human Rights
 
Complementary protection, based on the principle of non-refoulement in inter-national law, integrates international refugee law, international immigration law and international human rights law. The principle of non-refoulement takes fundamental human rights, as being those with Erga Omnes Obligations, as the target of protection. As mentioned above, the International Court of Justice, as an important promoter of the emergence and development of Erga Omnes Obligations, is cautious about the expansion of the scope of fundamental human rights with Erga Omnes Obligations. Complementary protection should also be limited to the extent that fundamental human rights are threatened. However, for the economic rights and social rights not included in the fundamental human rights with Erga Omnes Obligations, whether the obligation of complementary protection also comes into being is a question that is worth paying attention to. For example, the question of whether a country should also provide complementary protection to people who leave their homeland due to that country’s low economic level, social instability or natural disasters is a key issue to be solved in academia and practice.
 
A. Whether complementary protection should be endowed to people who cross borders for economic or social reasons
 
No matter whether conventional refugees or refugees not prescribed by the Convention Relating to the Status of Refugees, the obligation of protection is derived from international law. Especially for refugees not prescribed by the Convention, there are provisions on the principle of non-refoulement in international law. Some scholars believe that the refugees in the real sense are those people who have lost the protection of their own countries and are being persecuted by their own countries, so they need to be protected by international law. But “economic migrants” just tend to leave their countries of their own accord, hoping for the chance to enjoy a better life in other countries.32 So the traditional view is that people who cross borders for economic reasons should not have the same protection as conventional refugees33, and thus there is no obligation of complementary protection in international law to people who leave their country due to that country’s economic backwardness and social development. There are also scholars who hold that when applying the principle of non-refoulement to refugees not prescribed by the Convention Relating to the Status of Refugees in the field of international human rights law, the interests of national security and the concerns of individual human rights should be balanced and national discretion should be exercised34. It is not a question of yes or no. A number of factors need to be considered when determining the scope of complementary protection.
 
B. Discussion by the European Court of Human Rights on the target of complementary protection
 
As for the complementary protection for the refugees not prescribed by Convention Relating to the Status of Refugees, Europe is leading the way. Besides the above Directive on the Minimum Qualifications and Status of Nationals from a Third Country or Stateless Applying to be Refugees or Seeking International Protection in 200435 and Directive on the Standards for the Nationals from a Third Country or Stateless to be Granted International Protection Status and the Unified Status and the Protection to Refugees or People Endowed with Complementary Protection in 2011,36 the European Court of Human Rights has provided much protection for the refugees not prescribed by the Convention Relating to the Status of Refugees. These practices have been based on the Article 3 of the European Convention on Human Rights which stipulates that all have the freedom from torture and inhuman or degrading treatment, and there are no exceptions to or restrictions on the protection of these rights.
 
1.The traditional interpretation of Article 3 of the European Convention on Human Rights by the European Court of Human Rights
 
In the practices of the European Court of Human Rights, the provision of Article 3 is also interpreted as that people who may face torture or inhuman or degrading treatment shall not be expelled or repatriated to states where such threats may be posed. The classic case that made this interpretation accepted was “Soering vs. The United Kingdom case” in 1989.37 The European Court of Human Rights pointed in the case that extraditing a German citizen to the United States, where he could be sentenced to death for murder, would be a violation of Article 3 of the European Convention on Human Rights. In a series of cases since then, the European Court of Human Rights has repeatedly stressed the Court’s interpretation of Article 3, such as the classic case “Chahal vs. The United Kingdom case”38. In that case, the Court held that Chahal, the head of the Sikh independence movement, could have been subjected to inhumane treatment and torture in Punjab if he had been repatriated to India, so the decision made by The United Kingdom’s department of homeland security to deport Chahal violated Article 3.
 
2. Analysis by the European Court of Human Rights combining Article 3 of the European Convention on Human Rights with economic and social rights
 
In recent years, the European Court of Human Rights’ practice of Article 3 of the European Convention on Human Rights has gradually extended its provisions to the protection of economic, social and cultural rights. In the “D vs. The United Kingdom case”39 in 1997, considering that D was a terminally ill AIDS patient, the Court held that due to the severe shortage of medical facilities and conditions on the island of Saint Kitts, and D’s lack of relatives or friends on the island, if D was repatriated to that country at that time, he would spend his last days in pain and his dignity as a human being would not be guaranteed, and thus deporting D to the island of Saint Kitts would violate Article 3 of the European Convention on Human Rights.40 In particular, the Court pointed out in its judgment that the social problems in the case, such as the backward medical facilities on island of Saint Kitts, were not caused by the intention or negligence of the local government, but by the social hardship of the island itself, the lack of resources and the lack of infrastructure.41 In the MSS vs. Belgium and Greece case, MSS was a person awaiting confirmation as to whether or not asylum would be granted, and had to live on the streets without any means of support or shelter. He lived in such a poor situation for a few months, during which he was unable to get food, health guarantee, and shelter, all of which had proved that MSS got insulting treatment and his personality dignity failed to be respected, in violation of regulations on freedom from inhumane or insulting treatment in the Article 3 of European Convention on Human Rights.42
 
In the “Sufi and Elmi vs. The United Kingdom case”, the European Court of Human Rights for the first time made it clear that when the basic needs of the immigrants themselves cannot be guaranteed, that is, when the food, sanitation, shelter, medical treatment or other social support for immigrants cannot be realized, the deporting country may have to assume the obligation of “subsidiary protection”.43 The Court once again stressed that there should be a distinction between a government’s unwillingness and negligence to provide protection to its nationals and a government’s inability to provide protection to its nationals for natural reasons or domestic conditions.44 In the latter situation, in which the government is powerless, European coun-tries only undertake the obligation of “complementary protection” when extremely exceptional and urgent humanitarian problems arise.45
 
3. The principle of non-refoulement should be carefully considered when it relates to the protection of economic and social rights
 
Although in the above cases of the European Court of Human Rights the term complementary protection was rarely explicitly mentioned, the core of the discussion in these cases was undoubtedly consistent with the theory of complementary protection” in essence, in the issue of providing protection to people who are not qualified in the provisions of the 1951 Convention. Therefore, when exploring the issues related to targets of complementary protection, the practice of the European Court of Human Rights should be taken for reference.
 
The practice of the European Court of Human Rights in extending the obligation of complementary protection in international law to the field of economic and social rights should be treated with prudence. Moreover, the European Court of Human Rights itself should be cautious in dealing with the issue, especially when the damage to economic and social rights is not intentional but caused by external causes such as natural disasters, a country shall only assume the obligation of complementary protection in quite exceptional and urgent situations. After all, the current principle of non-refoulement clearly stipulated in international law is limited to fundamental human rights with Erga Omnes Obligations, and only the International Convention on the Civil Rights and Political Rights in Article 2 stipulates that countries have the obligation to provide protection of the rights in Convention to all within its territory or jurisdiction, while the International Convention of Economic, Social and Cultural Rights has no similar rules. Therefore, whether people who leave their hometown due to economic backwardness and social underdevelopment in the hope of a better life should be protected in the sense of law is a question that should be carefully judged based on individual cases.
 
IV. Conclusion
 
From the above analysis, it can be seen that the complementary protection, as an extension of the principle of non-refoulement in the 1951 Convention Relating to the Status of Refugees, lacks a clear definition as an obligation in international law, being mainly based on the provisions or interpretations concerning non-refoulement in some international or regional conventions on human rights. The principle of non-refoulement in international human rights law mainly exists in the field of fundamental human rights, such as freedom from torture, right to life, freedom from inhuman or degrading treatment. To some extent, upholding these fundamental human rights are characterized as Erga Omnes Obligations, and the protection and realization are relat-ed to every country in the international community, which, in return, have the obligation to ensure their realization. If complementary protection is an obligation under the international law, a country is therefore required to realize the non-refoulement and to guarantee the minimum rights for specific immigrants in its domain. Therefore, a sovereign state shall have to balance its national security interests with individual human rights and have the discretion to judge whether the principle of non-refoulement is applicable.46
 
The International Court of Justice has been cautious about the development of the concept of Erga Omnes Obligations after proposing it in the Barcelona Traction case of 1970. For decades, the International Court of Justice has explicitly affirmed Erga Omnes rights in terms of the right of colonial people to self-determination and freedom from genocide, and recognized the overall interests of the international community in terms of freedom from torture and environmental protection, the right to a healthy environment being indirectly recognized as being Erga Omnes. For other rights, such as civil rights and political rights, the Court didn’t include the protection of these rights as Erga Omnes Obligations, as economic and social rights are beyond the Court’s consideration. If the principle of non-refoulement is applied to the fundamental human rights with a certain degree of Erga Omnes, its scope of application needs to be limited; correspondingly. The subject under complementary protection should be limited to the scope of fundamental human rights. For example, the complementary protection proposed by the European Court of Human Rights in the field of economic rights and social rights should be viewed with caution. Just as the European Court of Human Rights combined it with the right to human dignity and freedom from degrading treatment, and limited it to urgent humanitarian issues, it should be combined with fundamental human rights that are Erga Omnes Obligations when deciding whether to give complementary protection if the subjects economic and social rights are threatened.
 
* SUN Xu ( 孙旭 ), Ph.D. candidate, Law School of Renmin University of China.
 
1. First, the person should stay in a country other than his or her country of origin; Second, the person is unable or unwilling to return to the country of origin; Third, the person’s inability or unwillingness to return to the country of origin is due to justified fear; Fourth, justified fear includes five reasons: race, religion, nationality, belonging to a social group and having a political opinion.
 
2. Jane McAdam, Complementary Protection in International Refugee Law (Oxford: Oxford University Press, 2007), 2-3.
 
3. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Migrants,” in International Law of Disaster Relief, David D Caron, Michael J Kelly and Anastasia Telesetky eds. (NewYork: Cambridge University Press, 2014), 190.
 
4. “Case Concerning the Barcelona Traction, Light and Power Company, Limited, Belgium v. Spain ”, ICJ Re-ports 3 (1970), paras 33-34.
 
5. Ibid., paras 33 -35.
 
6. Katariina Simonen, “International Conflicts and Protection of Fundamental Human Rights as an Obligation Erga Omnes,” Finnish Yearbook of International Law 10 (1999): 191.
 
7. Zhu Lijiang: “Contribution of the International Court of Justice to International Human Rights Law”, Foreign affairs Review 10 (2006).
 
8. Bruno Simma, “Bilateralism and Community Interest Confronted”, in 250 Collected Courses of the Hague Academy of International Law , The Hague Academy of International Law (1994) : 229.
 
9. Shinya Muresa, “Second Report on the Protection of Atmosphere”, International Law Commission, Sixty-Seventh Session (2015), UN Doc A/CN. 4/681, para. 43.
 
10. “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) not Withstanding Security Council Resolution 276”, Advisory Opinion, ICJ Reports 2(1971), para. 31. Western Sahara, Advisory Opinion, ICJ Reports 33 (1975), para. 31. “Case Concerning East Timor, Portugal vs. Australia”, ICJ Reports 90 (1995), para. 29.
 
11. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” Advisory Opinion, ICJ Reports 136 (2004), para. 155.
 
12. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina vs. Yugoslavia, Preliminary Objections, Judgment,” ICJ Reports 595 (1996), para. 31.
 
13. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia vs. Serbia, Judgment”, ICJ Reports 3 (2015), paras 87-88.
 
14. “Questions Relating to the Obligation to Prosecute or Extradite, Belgium vs. Senegal, Judgment”, ICJ Report 6 (2012), paras 68-70.
 
15. Katariina Simonen, “International Conflicts and Protection of Fundamental Human Rights as an Obligation Erga Omnes,” 194.
 
16. International Law Commission (ILC), “Draft Articles on the Responsibility of States for Internationally Wrongful Acts”, Report of the ILC on the Work of its 53rd session of 2001, UN Doc A./56/1017.
 
17. “The Report of the Meeting of Experts on Rights not Subject to Derogation during States of Emergency and Exceptional Circumstances ( May 17_19 )”, in Non-derogable Rights and States of Emergency, reprinted in Premont, Stenresen and Oseredczuk eds. (Brussel: Association for International Consultants on Human Rights, 1996), 39.
 
18. Gaja, “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative Analysis of Three Related Concepts,” in International Crimes of State, J. H. H. Weiler, A. Cassese and M. Spinedi ed. (Berlin: De Gruyter, 1989), 151-160.
 
19. Liang Shuying, “Treatment of Illegal Refugees,” Journal of the Pacific 7 (2007).
 
20. Li Mingqi, “Principle of ‘Non-refoulement’ in International Refugee Law,” Legal Research 4 (2013).
 
21. International Law Commission (ILC), Yearbook of the International Law Commission, vol. II (2009), Part two, UN DocA/CN.4/SER. A/2009/Add. 1 (Part 1), 171.
 
22. United Nations Committee on the Rights of the Child (CRC), General Common No. 6, Treatment of Unaccompanied and Separated Children Outside their Country of Origin, UN Doc CRC/GC/2005/6, para. 27.
 
23. United Nations Committee on Civil and Political Rights (CCPR), General Comment No. 31, The Nature of the General Legal Obligation Imposed on States to the Covenant, UN.Doc CCPR/C/21/Rev. 1/Add. 1326 May 2004, accessed May 28, 2018. http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6Qk-G1dB2FPPRiCAqhKb7yhsjYoiCfMKoIRv2FVaVzRkMjTnjRO%2Bfud3cPVrcM9YR0iW6Txagp3f9kUF-pWoq%2FhZB2FTpKi2tPhZsbEJw%2FGeZRASjdFuuJQRnbJEaU hby31WiQPl2mLFDe6ZSwM-MvmQGVHA%3D%3D
 
24. Canada Immigration and Refugee Protection Act, SC 2001, C57, Section 95 (1) (b).
 
25. International Committee of Red Cross (ICRC), International Humanitarian Law and International Human Rights Law: Similarities and Differences, Advisory Service on International Humanitarian Law, 2003, accessed May 28, 2018. https : //www. icrc. org/en/download/file/1402/ihl-and-ihrl. pdf.
 
26. There is no consensus on the definition of “complementary” protection currently. However, it is generally accepted by scholars that this protection is based on the principle of “non-refection” beyond the scope of the 1951 Convention. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Migrants”, 190.
 
27. United Nations High Commissioner for Refugees (UNHCR), Note on International Protection, 12 July 2006, UN Doc AAC. 96/1024, accessed May 28, 2018. http: //www.refworld. org/docid/44c9cb212. html.
 
28. Ibid.
 
29. European Union: Council of the European Union, Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third County Nationals or Stateless Persons as Refugees or as PersonsWho Otherwise Need International Protection and the Content of the Protection Granted, 30 September 2004, OJ L. 304/12-304/ 23; 30.9.2004, 2004/83/EC, accessed May 28, 2018. http://www.refworld. org/docid/4157e75e4. html
 
30. Michelle Foster, “Non-Refoulement on the Basis of Socio-Economic Deprivation: The Scope of Complementary Protection in International Human Rights Law,” New Zealand Law Review (2009): 260.
 
31. Jason Pobjoy, “Treating Like alike: The Principle of Non-Discrimination as a Tool to Mandate the Equal Treatment of Refugees and Beneficiaries of Complementary Protection”, Melbourne University Law Review 34 (2010): 188.
 
32. Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuse from Deprivation (London: Cambridge University Press, 2007): 2-21.
 
33. Katie Sykes, “Hunger without Frontiers: The Right to Food and State Obligation to Migrants”, 193.
 
34. Vijay M. Padmanabhan, “To Transfer or Not to Transfer: Identifying and Protecting Relevant Human Rights Interests in Non-refoulement,” Fordham Law Review 80 (2011): 73.
 
35. Jason Pobjoy, “Treating Like alike”, 188.
 
36. European Council on Refugees and Exiles, ECRE Information Note on the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 7 October 2013, accessed May 28, 2018. http://www. refworld. org/do-cid/551922ae4. html
 
37. Soering v. The United Kingdom, Council of Europe: European Court of Human Rights, 1/1989/161/2177, July 1989.
 
38. Chahal v. The United Kingdom, Council of Europe: European Court of Human Rights, 70/1995/576/662, 15 November 1996.
 
39. D v. United Kingdom, Council of Europe: European Court of Human Rights, 146/1996/767/964, 2 May 1997.
 
40. Ibid., para. 40.
 
41. Ibid.
 
42. MSS v. Belgium and Greece, Council of Europe: European Court of Human Rights, 21 January 2011, 30696/09, para. 263.
 
43. Sufi and Elmi v. United Kingdom, Council of Europe: European Court of Human Rights, 28 June 2011, 8319/07 and 11449/07, paras 279-283.
 
44. Ibid., para. 280-282.
 
45. Ibid., para. 281.
 
46. Ibid.

(Translated by XU Chao)
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