SLP 08 (2014)

TODAY MIGRANTS, TOMORROW REFUGEES?

Linda Janků, Věra Honusková, Eliška Flídrová

It is obvious that migrants today have to face many complex situations in which their rights may be endangered, violated or insufficiently guaranteed. There is a variety of issues relating to migration and to the rights of migrating people, ranging from the regulation of freedom to migrate and to enter the territory of foreign states, through the regulation of the legal status of persons finding themselves in the territory of foreign states, to the actual guaranteeing of rights arising from their legally recognized status, and the potential of migrants to effectively rely on those rights. The objective of this book has been to highlight one rather poignant issue within the whole branch and to attempt to find possible approaches to solving dilemmas related to it. The book has focused on the position of migrants who did not voluntarily opt for migration, but were forced to undertake such a difficult step by external circumstances preventing those people from staying in their country of origin. At the same time, these are persons whose legal position has not been unequivocally regulated by international law. The “privilege” has been safeguarded only for a relatively small portion of those persons, namely refugees within the meaning of the Convention Relating to the Status of Refugees (“Convention”), i.e. those escaping from their country of origin due to a specific form of persecution caused by precisely defined (relevant) reasons. Many other categories of so-called forced migrants lack such clear legal determination of their status in international law; they must rely on benevolence of individual states and/ or the existence of particular (regional) regulation of their status, or subsidiary protection ensured through non-refoulement by universal, and more frequently by regional, systems of human rights protection. Particularly the absence of regulation of the status of this category of forced migrants, which worldwide includes a substantial number, contrasting with relatively developed regulation of the status of refugees within international refugee law was an impetus for the drafting of this book. On the one hand, the book has attempted to define individual categories of forced migrants in more detail (we call them “improper refugees”) and to identify the scope of proposed regulation of their position within the recent system of international law, or to determine its possible substance de lege ferenda . On the other hand, the book has focused on the existing subsidiary system of the protection of rights of forced migrants, the basis of which lies in international human rights law; it has identified the key areas where this branch of international law can contribute to the protection of rights and position of forced migrants in a situation when another – more relevant and concrete – regulation is missing.

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