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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