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ŠÁRKA OŠŤÁDALOVÁ
CYIL 6 ȍ2015Ȏ
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
. Secondly,
it focuses on the existing subsidiary system of the protection of rights of forced
migrants, the basis of which lies in international human rights law; it identifies the
key areas where this branch of international law can contribute to the protection
of rights and the position of forced migrants in a situation when another – more
relevant and concrete – regulation is missing.
The publication is divided into five parts.The first part, written by Věra Honusková,
provides the basic introduction to the issue of improper refugees and to their specific
position in recent international law. It stresses the fact that the sources and forms of
forced migration significantly exceed the scope of the Convention on the Status of
Refugees, which was adopted in reaction to repeated massive waves of forced migrants
escaping persecution in their country of origin. Contemporary international law either
has no response to the “new” forms of forced migration, or it is very slow in finding any
answer. The two following parts of the publication deal with two specific categories
of forced migrants: environmental refugees and war refugees.
Regarding the issue of environmental refugees, it is pointed out that two main
forms of sources of migration may be identified. The first group consists of migrants
who are forced to leave due to long-term deteriorating natural conditions in
their country of origin, gradually depriving them of any chance to live physically
(climatological changes, land becoming non-arable, deterioration of waters, or total
extinction of the territory). The situation of such refugees and possible solutions, or
lack thereof, offered by contemporary international law are described by the example
of migrants from so-called drowning islands. It is obvious that international law has
not even started to form a response to the situation of these improper migrants. The
debates have been pursued at the doctrinal level; however, as suggested by the chapter
of Milan Lipovský, the debates’ conclusions have failed to suggest any satisfying
solution to the situation of these refugees without adopting new international
regulation. The first judgments of courts of New Zealand deciding on applications
for international protection of migrants from drowning islands, considered in detail
by Barbora Matějková in her chapter, clearly show that the existing legal framework
of the Convention on the Status of Refugees is absolutely insufficient. The second
group is composed of migrants as part of urgency migration situations caused by
natural disasters. As Pavel Šturma suggests in his chapter, the need has been officially
recognized to adopt a more detailed legal regulation aimed at solving not only the
consequence of, but also the reasons for, forced migration due to natural disasters:
the International Law Commission has been working on a possible response to the
issue. The Commission has been preparing the Draft Articles for the protection of
persons in the event of disasters; the Draft Articles indicate a possible direction of
proper international regulation of the response of states to the situation of persons