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consideration of this duty is evident in both the return (expulsion, surrender) of
persons staying in the territory of a European state, and the reaction of states against
persons coming to the territory of any European state and seeking protection there.
As can be observed primarily with respect to newly-arriving migrants and refugees, the
practice of some states is aimed at insufficiently respecting rights guaranteed by the
Convention and their attempts are apparently to avoid their duties towards migrants
and their reception. The practical implementation of the protection against
refoulement
of newly arrived migrants may be, due to insufficient political will, barred by many
obstacles, such as the case of
search and rescue
zones in high seas, which is dealt with
by Eliška Flídrová.
The second thematic area within the protection of human rights of migrants and
refugees are issues relating to the restriction or deprivation of personal liberty connected
with protection under Article 5 ECHR. Protection against arbitrary or unreasonable
detention due to the fact that persons are forced migrants and may, in the territory of a
state where they seek refuge, find themselves in an irregular position, has been analyzed
in detail in the case law of the European Court of Human Rights; it represents an
important piece in the mosaic of protection of the rights of persons in a vulnerable
and difficult position connected with uncertainty as to their future status and possible
forced return to their country of origin. Limits determined in its case law for states in
their potential to restrict personal liberty of such “undesired” migrants (whether due
to their irregular stay status or requested extradition to their country of origin) are
described in chapters by Miloš Kulda and Viktor Kundrák.
The chapters in the second thematic part (Part IV) clearly suggest that the existing
international law of human rights contains a basic legal framework that may be in certain
respects used when solving the situation of refugees and migrants; it also includes a
certain guarantee of their basic rights.
. From ”improper” refugees to refugees proper?
Today, improper refugees are protected primarily through the system of international
protection of human rights, particularly at the regional level. However, this area represents
only a subsidiary level of protection of “improper” refugees; as such it should play just
a complementary role. It does not offer by itself such level of protection that may
satisfactorily and comprehensively resolve the resident status and the legal status of
forced migrants. Although due to the absence of a more appropriate legal framework
such protection plays an irreplaceable role in guaranteeing the rights of these persons
today, this situation should not be considered as satisfactory and sufficient.
Theoretically, there may be several ways of solving the situation of improper refugees
legally. One of them would be the adoption of a new convention, or protocol(s) of
the Convention Relating to the Status of Refugees. However, reaching consensus
of contracting states would be hardly achievable, and therefore this way seems too