October 2, 2022

Seeking Asylum

Everyone has a right to seek and to enjoy in other countries asylum from persecution. -UNHRC

All YOU WANT TO KNOW ABOUT ASYLUM

Photo Credits: Nilüfer Demir

“Everyone has a right to seek and to enjoy in other countries asylum from persecution.”

Universal Declaration of Human Rights, Article 14 (para 1)

The word asylum is Latin and derives from the Greek word ‘Asylia’, which means inviolable place. The term referred to those cases, where the territorial state declines to surrender a person to the requesting state, and provides shelter and protection in its own territory.

The conception of asylum in international law involves two elements-

  1. Shelter, which is more than merely temporary refuge; and
  2. A degree of active protection on the part of the authorities in control of the territory of asylum.

These two elements distinguish asylum from that of immigration. An asylee may or may not be a refugee in accordance with the accepted definition in International law or municipal law.

Asylum and Extradition

Asylum is linked with extradition in as much as asylum stops where extradition rendition begins. The purpose of asylum is to accord protection to a person and to bring him under the jurisdiction of the granting state whereas extradition aims at surrendering or returning the offender to the state where he is alleged to have committed the offence. Therefore, asylum stops when the granting state decides to extradite the offender. Therefore, the concepts of asylum and extradition are opposed to each other.

Law on Asylum

Asylum is being practiced by the states for a long time either because it is referred to in some extradition treaties or in municipal laws. Sometimes, it is also granted without any formal legal basis. However, the concept of asylum has still not acquired the necessary clarity. Practice of states is insufficient to constitute it that type of custom which International Law requires to call the practice as customary International law. This reason alone led to the International Law commissions to include the topic of asylum in its provisional list for codification.

The Assembly in 1959 requested the commission ‘as soon as it considers advisable, to undertake the codification of the principles and rules of International Law relating to the right of asylum.’ So, in the absence of any law, the topic at present is governed mainly on the basis of the state practice and judicial decisions.

Basis of Asylum

A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individuals found on its territory. The Draft Convention on Territorial Asylum adopted by the General Assembly in 1974 has recognized under Article 1 that grant of Asylum is a sovereign right of a state. The territorial jurisdictional right extends, by application of sovereignty implies some control as does the principle of territoriality.

While the territorial asylum finds its basis in municipal law, the extraterritorial asylum is said to have its legal basis in International law. States have complete freedom to put restrictions on their territorial jurisdictional right by concluding treatise. The present trend is that states are under a duty not to grant asylum to those who have planned, facilitate, or committed terrorist acts. The Security Council by adopting Resolution 1373(2001) on September 28, 2001, decided that “All states shall deny safe haven to those who finance, plan, support or commit terrorist acts.”

Reasons for Asylum

A state grants asylum to a person because of many reasons.

Firstly, it is granted to save a person from the jurisdiction of the local authorities. It is feared that he would not get a fair trial.

Secondly, a person may be granted asylum on extra-legal grounds or to say on humanitarian grounds.

Thirdly, the offender who may be a rebel today may become the ruler in the future date. In that case, the relationship would be strained if he is extradited.

Right of Asylum

Universal Declaration of Human Rights under Article 14 (para 1), lays down that “everyone has a right to seek and to enjoy in other countries asylum from persecution.”

This right was expressed as a response to the concern for refugee and stateless persons after World War II. The above provision might have given the impression that a person has a right to get asylum in any state but it is to be noted that the document was adopted by the General Assembly by way of declaration and as such it has no legal force. States are under, in no way, legally bound to accept the above provision. The right to grant asylum is the prerogative of the states. In 1950, the Institute de Droit International confirmed the character of asylum as a discretionary power belonging to sovereign states.

The constitution of many countries expressly grant the right of asylum to persons persecuted for political reasons, but it cannot yet be said that such a right has become a ‘general principle of law’ recognized by civilized nations and as such forming part of International Law. The right to grant asylum exercised on the basis of the principle of territorial sovereignty.

FORMS OF ASYLUM

Asylum is of two kinds, namely territorial and extra-territorial (diplomatic) asylum.

  1. Territorial asylum

When asylum is granted by a state on its territory, it is called territorial asylum. The right to grant asylum by a state to a person on its own territory flows from that fact every state exercises territorial sovereignty over all persons, on its territory, whether they are its subjects or aliens. A state has a right to admit or expel any person found in its territory. The grant of territorial asylum, therefore, depends upon the discretion of a state which is not under a legal obligation to grant asylum to a fugitive.

State’s power to grant asylum

A state’s liberty to grant asylum in its territory is of ancient origins, and extends not only to political, social, or religious refugees but to all persons from abroad, including criminal offenders; it is merely one aspect of a state’s general power of admission or expulsion from its territory.

Sub-classification of Asylum

It has been claimed that territorial asylum should be sub-classified into:

  1. Political asylum– for so-called ‘defectors’
  2. Refugee asylum– for refugees with a well-founded fear of persecution in their own country; and
  3. General asylum– for persons who have fled from their country to seek economic betterment, but do not have the status of immigrants.

Rules of General assembly relating to asylum

The lack of generally accepted rules regarding the grant of territorial asylum led the General Assembly to call upon the International Law Commission in 1959 to undertake the codification of the principles and rules of International Law relating to right to asylum. Pending the codification, the Assembly adopted a resolution on December 14, 1967, which is known as the Declaration on Territorial Asylum through the adoption of the resolution. The Declaration consists of a preamble and four Articles, dealing with the principles relating to the grant or refusal of asylum and with the interest of the International Community in the question of asylum.

It is recommended that, in their practices, states should follow a number of standards and desiderata, among which are the following-

  1. A person seeking asylum from persecution should not be subject to rejection at the frontier, or if he has already entered the territory in which he seeks asylum, to expulsion or compulsory return. If there are overriding reasons of national security, or if it be necessary to safeguard the population, as in the case of a mass influx, asylum may be refused, but the state concerned should consider granting the person seeking refuge an opportunity, by way of provisional asylum or other-wise, of going to another state. (Art 3)
  2. Where a state finds difficulty in granting or continuing to grant asylum, states individually or jointly or through the United Nations should consider, ‘in a spirit of International Solidarity’, appropriates measures to lighten the burden on that state. (Article 2)
  3. Asylum granted to persons seeking refuge from persecution should be respected by all other states. (Article 1)
  4. State granting asylum shall not permit persons, who have received asylum to engage in activities contrary to the purposes and principles of the United Nations. (Article 4)

The above provisions make it clear that a state does not have the absolute right to grant asylum. The grant of asylum is a power that cannot be exercised in respect of international crimes including genocide. However, the Declaration is not a binding instrument. States have the freedom to grant territorial asylum to any person they like.

Idi Amin and Baby doe have been given asylum by Saudi Arabia and France respectively. They cannot be brought to justice for their horrifying crimes unless they are sent to their countries.

The liberty of states to grant asylum may, of course, be cut down by treatises of the states concerned of which.

Draft Convention on Territorial Asylum

In order to give a legal basis for granting asylum, efforts were made to formulate a convention on the topic. The Draft Convention on Territorial Asylum was adopted by the General Assembly on December 10, 1974, but it again did not improve the position. Article 10 of the Draft Convention recognized that the grant of asylum is a sovereign right of the state, but state parties shall use their ‘best endeavors’ in ‘humanitarian spirit’, to grant asylum in their territory.

The General Assembly on December 9, 1975, adopted a resolution for the elaboration of a Draft Convention on Territorial Asylum wherein the Secretary-General was requested to convene a conference of plenipotentiaries or territorial asylum to consider and adopt a convention on Territorial Asylum. Accordingly, a conference was held in Geneva from January 10, 1977, to February 4, 1977, but the representatives from the different countries could not succeed in reaching a consensus on the subject. Thus, no convention has been formulated on the topic of territorial asylum.

Examples relating to Asylum

It may be recalled that due to genocide and other atrocities committed by Pakistan in East Pakistan forced millions of oppressed people to leave their country. They sought refuge in India. India liberally granted political refuge to these people. By doing so, India gave expression to Article 14 of the Universal Declaration of Human rights of 1948 and Article 31, 32 and 33 of the Refugee Convention of 1951.

Dalai Lama and his Tibetan Followers

Being oppressed from the repressive policies of china, Dalai Lama and some of his followers fled away from Tibet and sought political refuge in India. India granted asylum to Dalai Lama and his followers.

  1. Extra-Territorial Asylum

When asylum given by a State at places outside its own territory, it is called extra-territorial asylum. M’cNair says that the term ‘extra-territorial asylum’ is usually described to those cases in which a state declines to surrender a person demanded who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial waters or upon its diplomatic (or rarely consular) premises within foreign territory.

Thus, asylum given at legations, consular premises, and warships, are instances of extra-territorial asylum. They have been dealt separately.

  1. Asylum in Legation

When asylum is granted by a state within its embassy premises situated in foreign countries, it is known as asylum in legation or diplomatic asylum. Diplomatic asylum is based on the consideration that embassy premises are regarded to be outside the jurisdiction of the territorial state, and therefore it is inviable. The head of the mission may grant asylum to a person in the premises. Diplomatic asylum is not a general principle of International law, and as such a state is not bound to give asylum in its embassies.

Exceptionally, but without acknowledgment of any absolute right in a fugitive to require this, asylum may be granted in legation premises,

  1. As a temporary measure, to individuals physically in danger from mob rule, or where the fugitive is in peril because of extreme political corruption in the local state, the justification being presumably that by the grant of asylum, an urgent threat is temporarily tided over.
  2. Where there is a binding local custom, long recognized, that such diplomatic asylum is permissible.
  3. Under a special treaty (usually allowing such right in respect of political offenders only) between the territorial state and the state which is represented by the legation concerned.

Oppenheim has rightly stated that the practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general International law.

In Asylum case (Columbia v. Peru, ICJ 1950, 266 et seq), which dealt with the application of alleged regional Latin-American rules of international law concerning such asylum. It has been claimed that the Latin-America practice and doctrine of diplomatic asylum ‘operated in large measure not through treatise alone (such as the Montevideo Convention of 1933 on political asylum) but by common unarticulated understandings.’ And should not be regarded as capable of generalization. In any event, such asylum was usually granted for only a limited one.

Limitation and powers to grant Asylum

A state is not under an obligation to grant asylum to a person in its legation. In the absence of a treaty or custom, the embassy must surrender the person to the prosecuting government at its request. If the surrender is refused, certain measures may be taken to induce them to do so. Such measure includes the surrounding of the embassy by the soldiers. Criminals may even forcibly be taken out of the embassy. However, the grant of temporary asylum ‘against the violent and disorderly action of irresponsible sections of the population,’ is a legal right which, on grounds of humanity, maybe exercised irrespective of treatise.

Whatever asylum has been granted on humanitarian ground is a question that should be decided by some impartial agency, judicial or other, and not by the territorial state unilaterally. It is desirable if the issue is decided peacefully through the diplomatic channel. Once asylum has been granted in the diplomatic mission, the head of the mission is required to inform the territorial state of this fact.

Rules of extra-territorial Asylum

The grant of asylum in legation is a question which could not be settled in International Law mainly because the practice of states is not uniform. When Assange, WikiLeaks founder, was granted asylum by Ecuador in its embassy in London in 2012, the act was condemned by U.K, and the United States of America on the ground that they do not recognize the concept of ‘diplomatic asylum’. Thus, political considerations, very often play a dominating role in granting asylum.

So, to clarify the issue, General Assembly at its 29th session in 1974, adopted a resolution inviting members to communicate their views on diplomatic asylum to the United Nations Secretary-General, and requesting the latter to circulate a report-containing an analysis of the subject. The secretary-general’s report on diplomatic asylum is a valuable study which, in conjunction with General-Assembly discussions, has paved the way for further clarification and development.

Indian view on Diplomatic Asylum

India has made its position clear regarding the diplomatic asylum by issuing a circular on December 30, 1967, to all foreign diplomatic missions in India wherein it was stated that the Government of India does not recognize that right of such missions to give asylum to any person or persons within their premises.

In the statement, missions were requested that if they receive a request for asylum to temporary shelter, or refuge such a request should not be granted. The above view was further claimed by the Indian delegated Dr. Syied Muhammad on November 3, 1975, in the sixth committee on the item concerning Diplomatic Asylum. He started that diplomatic asylum involves a derogation from the sovereignty of the territorial state and an intervention in matters which are exclusively within the competence of that state.

State practice, however, permits diplomatic mission to give within its premises temporary refuge is clearly justified on grounds of humanitarian consideration.

2. Asylum in consulates

Rules regarding asylum in consulates are similar to that of asylum in legation premises.

  • Asylum in warships

Men of war and public vessels of foreign states, while in the ports or internal waters of another state, are exempted from the jurisdiction of the latter for certain purposes. They remain under the jurisdiction of the flag state. However, such vessels are bound to observe the ordinary laws of the port. As far as asylum on the in war-ship is concerned, it may be granted on the humanity, in cases of extreme danger to the individual seeking it.

  • Asylum in Merchant Vessels

Merchant vessels are not exempted from the local jurisdiction, and therefore, asylum cannot be granted to an offender. Thus, if a person after committing a crime on shore seeks asylum on board a foreign merchant ship he may be arrested by the local police, either before the ships leaves the port or when it comes into another port of the same state.

Asylum in the premises of International Institution

Whether a person taking refuge in the premises of an International institution or organization would be granted asylum is a question which cannot be given with certainty in the absence of any rule in this regard and also because of the lack of practice. However, a right to grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

Extra-territorial Asylum and India

India does not recognize the grant of extra-territorial asylum. It is clear from the circular issued to all the diplomatic missions in India on December 30, 1967, and also from the statement of Indian delegate Dr. Syied Muhammad on November 3, 1975, in the sixth committee on the item concerning Diplomatic Asylum. However, it gave diplomatic asylum to the late King Tribhuvan of Nepal when he sought asylum at the height of the Rang revolt against him. When the soviet defector Aziz Ouloug-Zade took refuge in the American Embassy in India, it was granted to him temporarily. On protest, he was surrendered to the Indian authorities. Further, on February 13, 2013, India gave asylum to Muhammad Nasheed, the former president of Maldives in India High Commission in Maldives when sought refuge in order to evade arrest warrant issued by the court. After having stayed in the Indian high commission for eleven days he decided to leave on his own.

Conclusion

The concept of asylum is very old and traditional in the sense that earlier states used to provide shelter to an alien who was found in its territory. This shelter provides by using their power of sovereignty, that is why, Embassies and warships, where states claimed their sovereignty also places to provide asylum. This is very obvious that states give asylum on the basis of that strategy, by which they want to maintain the relation with that wants to maintain the relation with that particular state. However, many countries, like India gives asylum on Humanitarian ground as India gave asylum Dalai Lama. Without any fixed rules regarding the Asylum in International law, states use their discretion.

Author: Arshi Hayat Gangohi, ll.b 2nd year, Department of Laws, Panjab University Chandigarh
Tip
Tip the Writer




If you like the article and if you feel that it was a useful document to you then please provide a little token of appreciation(Rs10) for the Writer so that he/she can continue to produce more dedicated work in future. As most of the writers are young students thus this initiative wants them to gain confidence and become a better professional in future.




Reference

  1. J G Stake, Introduction to International law (Butterworth International Editions, Butterworth Singapore,1989, Tenth Edition, 1989)
  2. Dr. S.K. Kapoor, International Law and Human Rights (central law agency, Allahabad, Fifteenth Edition, 2004)
  3. Gurdip Singh, International Law, (Macmillan India Ltd. Delhi, 2003)
  4. H.O. Aggarwal, International law and human rights, (Central Law Publications, twentieth Edition, 2018)