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TODAY’S MIGRANTS, TOMORROW’S REFUGEES?…
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 analysed 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 the 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 part four 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.
The final, fifth part of the publication is dedicated to the conclusion. The authors
summarize that 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 a 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.
According to the authors, 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 unrealistic. Another direction which may be more hopeful
for international law because of some willingness on the part of states, since such a
solution would not bind them to receive and provide protection to forced migrants
on their territories, would be to emphasize and stipulate the responsibility of states
for situations within their borders. Under such circumstances a potential duty of the
state to accept the assistance of other states in the case of domestic conflict would be
appropriate and forced migration may be prevented or at least reduced. However, the
recent conception of state sovereignty makes such a possibility relevant only in the
very distant future (any considerations of redefining the conception go beyond the
scope of this book).
High numbers of improper refugees occurring in the territory of various states
is a reality. From a humanitarian perspective it would be desirable to claim that
the only possible solution would be the adoption of a complex international legal