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WHAT IS THE ASYLUM, FOCUS ON THE INTERNATIONAL CONFERENCE ON ASYLUM
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WHAT IS THE ASYLUM, FOCUS ON THE
INTERNATIONAL CONFERENCE ON ASYLUM
AUTHORED BY - TANNU SHREE
B.A.LLB (HONS)
Abstract
States have been granting protection
to individuals and groups fleeing persecution for centuries; however, the
modern refugee regime is largely the product of the second half of the
twentieth century. Like international human rights law, modern refugee law has
its origins in the aftermath of World War II as well as the refugee crises of
the interwar years that preceded it. Article 14(1) of the Universal Declaration
of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek
and enjoy asylum in other countries. Subsequent regional human rights
instruments have elaborated on this right, guaranteeing the “right to seek and
be granted asylum in a foreign territory, in accordance with the legislation of
the state and international conventions.” American Convention on Human Rights,
art. 22(7); African [Banjul] Charter on Human and Peoples’ Rights, art. 12(3).
The controlling international
convention on refugee law is the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Optional Protocol relating to the
Status of Refugees (1967 Optional Protocol). The 1951 Convention establishes
the definition of a refugee as well as the principle of nonrefoulement and the
rights afforded to that granted refugee status. Although the 1951 Convention
definition remains the dominant definition, regional human rights treaties have
since modified the definition of a refugee in response to displacement crises
not covered by the 1951 Convention.
The 1951 Convention does not define
how state parties are to determine whether an individual meets the definition
of a refugee. Instead, the establishment of asylum proceedings and refugee
status determinations are left to each State party to develop. This has
resulted in disparities among different States as governments craft asylum laws
based on their different resources, national security concerns, and histories
with forced migration movements. Despite differences at the national and
regional levels, the overarching goal of the modern refugee regime is to
provide protection to individuals forced to flee their homes because their
countries are unwilling or unable to protect them.
Introduction
“No one
leaves home unless home is the mouth of a shark.”
— Warsan Shire
The quote by Warsan Shire depicts the
harsh reality of how persecution or its fear drives millions to leave their
homes and seek asylum. As per the United Nations, Human Rights Commission
(UNHRC)’s 2018 data[1], 70.8
million people were forcibly displaced worldwide out of which 3.5 million were
asylum-seekers.
Around 1 million asylum-seeking
applications were filed in the first half of the year 2019[2].
It is believed that the concept of asylum is as old as life on earth, and with
developing years it has taken a structured meaning and implications.
This article describes the concept,
types, needs, and other factors related to the concept of Asylum and
Asylum-seekers.
Asylum in
International Law
It is pertinent to first understand
the term ‘Asylum’. It has been derived from a Greek word whose Latin
counterpart is ‘Alyson’ and it means ‘freedom from seizure’. There is no
specific definition of Asylum but it can be understood as legal protection
granted to people who have fled their home countries due to warship, conflict,
persecution, or fear of persecution. It is a possibility to remain in a country
either permanently or for a temporary period. A person who seeks international
asylum i.e., an asylum seeker is known as an ‘Asylee’.
The process is that an individual has
to apply for asylum in a particular country, and while their application is
pending, they are made to stay in a detention camp. Once, the applications are accepted
i.e., their claims are accepted, then these people get the status of a refugee
and the rights that come along with it.
Kinds of asylum
There are two types of Asylums are as
follows:
A) Territorial Asylum; and
B) Extra-territorial Asylum
A) Territorial Asylum:
Territorial 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 territory flows from the fact that every
state exercises territorial sovereignty over all persons, on its territory to
anyone. The grant of territorial asylum, therefore, depends upon the discretion
of a State which is not under a legal obligation to grant asylum to the
fugitive, as no precise rules to grant of territorial asylum. General Assembly
call upon the International Law Commission in 1959 to undertake the
codification of the principles and rules of international law relating to right
of asylum. On 14th December 1967 General Assembly adopted Declaration of
Territorial Asylum through the adoption of resolution. The declaration consists
of a Preamble and four Articles dealing with the principles relating to the
grant of refusal of asylum. This Declaration provides that the right to seek
and enjoy asylum may not be invoked by any person with respect to whom there
are serious reasons for considering that he has committed a crime against
peace, war crimes and crimes against humanity. Article 4 of this Declaration
provides that the State granting asylum shall not permit persons who have
received asylum to engage in the activities contrary to the purpose and
principles of the United Nations. From the above provisions of the declaration,
it is clear that State does not have the absolute right to grant asylum. The
grant of asylum is a part of which cannot be exercised in respect of
international crimes including genocides.
Some examples of territorial Asylum –
i) Dawood Ibrahim mafia Don is given
asylum by Dubai Government.
ii) Taslima Nasreen a Bangladeshi writer
for her novel Lajja granted asylum by Sweden.
iii) Tiger Menon, wanted in Bombay Bomb
blast case, granted asylum by Pakistan.
iv) Dalai Lama and his followers was
granted asylum by government of India.
B) Extra-territorial Asylum –
Active protection is given outside
the territory not belonging to the state granting it. Thus, when Asylum is
granted by a State at places outside its own territory. It is called
extra-territorial Asylum’. It usually describes those cases in which a State
refuses to surrender a person demanding who is not upon its own physical
territory but is upon one of its public ships lying in foreign territorial
borders or upon its diplomatic premises within foreign territories. Thus,
Asylum is given at legation, consular premises and warships are instances of
extra-territorial asylum.
1. Diplomatic Asylum / Asylum in
Legation:
Since granting
extra-territorial Asylum or diplomatic Asylum involves a derogation from the
sovereignty of the State, International law ordinarily does not recognize a
right to grant asylum on the premises of legation. But asylum may be granted in
the legation premises in the following exceptional cases.
i) Individuals who are physically in
danger from violence.
ii) Where there is well-established and
binding local custom.
iii) When there is a special treaty
between the territorial State and the state of Legation concern.
iv) Asylum in consular premises -
2. The above principle also applies in
the case of a Grant of asylum in consular premises.
3. Asylum on the premises of an
international institution -
Though International Law does not
recognize any rule regarding the grant of asylum in the premises of
international institutions, however, temporary Asylum may be granted in case of
danger of imminent violation.
4. Asylum in Warship -
There are conflicting
views on to grant of asylum in warships, but it is argued that Asylum may be
granted to political offenders.
As far as an asylum
Warship is concerned, it may be granted on the ground of humanity, in cases of
extreme danger to the individual seeking it. Thus, the right to grant asylum on
Warship may be granted in the same way in the case of Legation and also subject
to the operation of the same conditions.
5. Asylum in Merchant Vessels -
Since merchant vessels do
not enjoy immunity from local jurisdiction, they are not competent to Grant
asylum to local offenders. Thus, if a person after committing a crime on shore
seeks asylum on board a foreign merchant ship he may be asserted by the local
police, either before the ship leaves the port or when it comes into another
port of the same State. There is, therefore a rule that asylum is not granted
on merchant vessels. However, State may grant asylum if they conclude a treaty
to this effect.
6. Asylum on the premises of
international Institutions:
Whether a person taking
refugee 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 lack of practice.
However, a right to grant temporary refuge in an extreme case of danger from a
mob cannot be ruled out.
Thus, in
Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional
cases and it is necessary to establish a legal basis in each particular case.
Various
declarations, conferences and conventions
It is worth noting that there has
been a continuous conflict on the question of whether the right to asylum is a
right of an individual or of the state.
There are a few declarations that
provide the ‘Right to Asylum’ like the Universal Declaration of Human Rights (UDHR),
the Vienna Declaration on Human Rights and Programme of Action and the
Convention on Political Asylum which was concluded by the Seventh International
Conference of American States in 1933.
? Article 14[3]
of the Universal Declaration of Human Rights provides the right to an
individual to seek asylum in any country to protect them from persecution.
Provided as per clause 2 of Article 14 that any individual who has a criminal
record of anything which is not acceptable as per the principles of the United
Nations, cannot seek asylum and in case of non-political reasons, the asylum
can be denied. It is considered as the fundamental law.
However, India is not a party to it.
?
Refugee convention4
Article 33(1) 1951 Refugee Convention
prohibits the expulsion or return of refugees and asylumseekers if their life
or freedom is in danger based on their race, religion, membership of a social
group, political opinion, or nationality.
Ø
New
York Declaration for Refugees and Migrants[4]
New York Declaration for Refugees and
Migrants by the UN General Assembly in 2016 also reaffirms the ‘right to seek
asylum’ and freedom of an individual to leave or return to their country.
Ø
Article
18[5] of the
Charter of Fundamental Rights of the European Union also provides that as per
the rules of the Geneva Convention (28 July 1951) and 1967’s protocol, the
right to Asylum is guaranteed.
Ø
The
Vienna Declaration and Programme of Action[6]
In 1993, the Vienna Declaration and Programme of Action also reaffirmed the
right to seek and enjoy asylum in other countries and the right to return to
their own country.
However, the articulation of the law
of the right to asylum signifies that it is not the right of an individual, but
rather is a right of the state to grant asylum. It depends on the discretion of
the State whether it grants the asylum or not. The decision of the state must
be respected by all the other states. States have to take into account their
economic status before granting asylum as it is the duty of the state to ensure
its economic stability.
Examples
Various countries have provided the
right to asylum in their Constitutions to the people who have fled from
persecution, for example- Constitution of France, Article 10 of the Italian
Constitution, Article 31 of Yugoslavia Constitution, etc.
Landmark cases of asylum
Assange v. The Swedish Prosecution
Authority[7]
The recent case that has captured a
lot of media attention is of Julian Assange. He is an Australian editor,
publisher, and founder of WikiLeaks who was accused of a rape case and a
molestation case by the Sweden government. The Sweden government had filed for
the extradition of Assange and the UK Supreme Court had ordered for his
extradition to Sweden in May 2012. In June 2012, he was granted asylum in
England at the Embassy of Ecuador.
The reason was given that his human
rights would be violated if he is sent to Sweden. In 2015 Sweden dropped the
charges against Assange. In February 2012, the UN declared that he had been
‘arbitrarily detained’ by the Ecuador embassy. In May 2019 he was sentenced for
50 weeks jail for breaching bail conditions.
He has also been accused of
committing a crime against the United States of America by releasing the
confidential documents of the United States of America on his website named
‘WikiLeaks’.
The USA has been trying to extradite
him to their country.
Colombia v.
Peru 1950[8]
It is a landmark case that has
described in detail the law on diplomatic asylum.
A national of Peru who was a
political leader named Victor Raul Haya de la Torre, he was accused of
instigating a military rebellion. He was granted asylum by the Colombian
embassy at Limo. However, he was not allowed to leave the country. The dispute
arose between Peru and Colombia and the matter was then referred to the
International Court of Justice. The main question raised was regarding the
right to grant diplomatic asylum.
The court carefully observed that:
·
Diplomatic
asylum is the derogation of territorial sovereignty and it should not be
recognized unless in each case a legal basis is established.
·
The
state providing such a grant must prove that it has the right to grant
diplomatic asylum and it should be respected by the territorial State.
The Court also observed
that there is no international treaty related to Diplomatic Asylum, only Latin
American and Central American countries have such rights. Diplomatic Asylum is
defined as the asylum provided to people who are political offenders and fear
that if they are prosecuted, they will have to face an unfair trial and
therefore want to escape the persecution. The Court held that it is a settled
fact that common criminals cannot be granted asylum. A and Another v. Minister for Immigration
& Ethnic Affairs
In 1997, in the case of A
and Another v. Minister for Immigration & Ethnic Affairs[9] Chinese
nationals asked for asylum in Australia and claimed that they fear prosecution
because they are expecting a second child which might land them in trouble. The
reason being that China has adopted the one-child policy and the fear arose
that they would be subjected to sterilization as the community from which they
belonged had only one child and whosoever surpassed the limitation was forced
or coerced to undergo sterilization. The Court of Australia did not accept it
to be a sufficient ground of persecution. Whereas, the US Congress has
recognized that forced sterilization amounts to and is enough to be considered
as a ground for persecution.
In India, there is no
specific law related to asylum-seekers. They are categorized as ‘foreigners’
under various acts like Registration of Foreigners Act,1939, Foreigners Order,
1948, Passport Act,1920 and The Foreigners Act, 1946. India is not even a party
to the Universal Declaration of Human Rights (UDHR). Still, India has provided
asylum in certain cases, the main one being the asylum provided to Dalai Lama
and his followers in 1955 despite being highly criticized by the China
government. India had the power to do so by exercising its sovereign power.
Conclusion
Asylum is a very crucial part of
international law. Now more than ever, when the middle-east countries are under
turmoil, with increasing wars among countries, CAA-NRC debate in India, etc. It
has become necessary to ensure the proper implementation of the right to grant
asylum with prudence and forethought. There is still a need to remove the layer
of obscurity over the Diplomatic Asylum concept. Various countries including
India need to have a clear Asylum law in their countries. As the principle that
every country needs to abide by is the principle of humanity. The rights of asylum seekers have become more important.
The cases worldwide are stressful and leading inhuman behaviour. The laws for
the refugees are established under International law but the asylum seeker’s
law is not explicitly described under international law.
References
Websites referred:
Ø
https://blog.ipleaders.in/asylum-territorial-extra-territorial/
Ø
https://lawcorner.in/asylum-in-international-law/#CASES
Ø
https://www.britannica.com/topic/asylum
Ø
Books
referred:
Ø
Tondon,
M.P.: Public International Law, 20th ed., Allahabad Law Agency, India, 1985, p.
294.
[1]
https://www.unhcr.org/5d08d7ee7.pdf
[2]
https://www.unhcr.org/en-us/statistics/unhcrstats/5e57d0c57/mid-year-trends-2019.html
[3]
https://www.ohchr.org/sites/default/files/UDHR/Documents/UDHR_Translations/eng.pdf
4 https://cms.emergency.unhcr.org/documents
[4]
https://www.unhcr.org/584689257.pdf
[5]
https://www.europarl.europa.eu/charter/pdf/text_en.pdf
[6]
https://www.ohchr.org/en/instruments-mechanisms/instruments/vienna-declaration-and-programme-action
[7]
[2011] EWHC 2849
[8]
Asylum Case (Colombia v. Peru), International Court of Justice (ICJ), 20
November 1950
[9]
A and Another v Minister for Immigration and Ethnic Affairs and Another,
[1997], Australia: High Court, 24
February 1997,
available at: https://www.refworld.org/cases,AUS_HC,3ae6b7180.html [accessed 4
December 2022]
Article Information
WHAT IS THE ASYLUM, FOCUS ON THE INTERNATIONAL CONFERENCE ON ASYLUM
Authors: TANNU SHREE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/15
- Issue 7
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International Journal for Legal Research and Analysis
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