SLP 08 (2014)

Another poignant and highly topical issue relating to war refugees and relevant with respect to many recent armed conflicts, has been the issue of protection and guarantee of a civilian and humanitarian nature of refugee camps and prevention of abuse by any war party of the vulnerable position of refugees from territories suffering from war conflicts, which is the topic of the chapter of Tomáš Bruner. Different branches of international law provide for solution of the situation of such persons, primarily international humanitarian law, international refugee law, or national law and protection resulting from guaranteeing human rights (in particular with respect to internally displaced persons escaping a war conflict but not crossing international frontiers). This concurrence of potential areas of regulation primarily suggests that recent international law has insufficiently responded to the solution of the issue. ͸. The existing protection of ”proper” and ”improper” refugees within the European regional regulation of human rights protection In addition to attempted searching for a new legislative solution of insufficiently treated types of forced migration it appears advisable to consider whether there are possibilities offered to these persons in the area of the protection of human rights, and what those possibilities are. The second thematic layer of this book (Part Four) deals with the guarantee of the rights of refugees and (forced) migrants within the existing international mechanisms of protection of human rights with special regard to the regional European subsystem. The latter, particularly through the European Convention on Human Rights (“ECHR”) and relating decision making powers of the European Court of Human Rights (“Court”), is to supervise the observance of basic human rights of migrants and restricts the freedom of states to regulate the entry and stay of migrants in their territories. This helps to protect these persons and may, to a certain extent, fill in the legal gap that may exist in the specific and targeted regulation with regard to the status of “improper” refugees. As suggested by the chapters dealing with this topic, there are two areas of legal regulation emerging within the protection of rights of migrants and refugees coming or living in the territory of European states. The first area is the protection relating to the ban on torture, inhumane and humiliating treatment and punishment under Art. 3 ECHR, whose basic contours are tackled by Ján Šikuta, along with examples of the Court’s case law applicable to (forced) migrants. Protection provided under this Article is absolute; it may be pursued in many ways within migration situations. One type of violation of the Article is direct action by Contracting states arising when the conditions in detention facilities where improper migrants and refugees are confined, are unsatisfactory. In addition, a significant role is played in practice by rules for the protection against refoulement – i.e. returning migrants (refugees) back to countries where their rights guaranteed by Art. 3 ECHR would be threatened. This duty of states, designated as non-refoulement , has been inferred within protection under Art. 3 ECHR by the case law of the Court; the

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