Asylum in International Law

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Introduction:

A state’s authority to grant asylum is recognized by customary International Law. Every state has absolute right to grant asylum unless it has accepted some particular restriction in this regard. The conception of asylum in international law involves two elements; (a) Shelter and (b) a degree of active protection by the authorities in control over the territory of Asylum.

Asylum may be “territorial” as well as extra-territorial. The former is universally accepted but there is no agreement on the latter in International community.

Meaning of Asylum:

Oxford Dictionary:- Asylum means sanctuary.
Legal meaning- It means shelter and active protection extended to refugee from another state by a state which admitting him on his request.

Elements of Asylum:

  • Shelter
  • Active protection (by the authorities in the control of the territory of Asylum).

Basis of Asylum:-

Article 14 of the Universal Declaration of Human Rights, 1948.

Everyone has the right to seek and enjoy asylum in other countries from prosecution. This right may not be invoked in the case of persecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of United Nations.

AIMS TO GRANT ASYLUM

  1. CORFU CHANNEL CASE 1949

It was held by ICJ that Asylum may be granted on Humanitarian grounds in order to protect political offenders against the violent actions.

  1. International liability:-

Every state has an obligation to protect innocent innocent person from violent crimes. Thus, the State which grants Asylum to an alien within its territory does not thereby incur any international liability.

TYPES OF ASYLUM:

  1. International Asylum:-

Territorial Asylum is given by states in its own territory and is considered as attributes state’s sovereignty and rights.

Place where territorial Asylum is granted:-

The territorial Asylum is granted in the state’s own territory.

Right of state to grant Territorial Asylum:

The territorial Asylum is right or discretion of state to grant the territorial Asylum or not.

Person to whom territorial Asylum is granted.

The territorial Asylum is not granted to the terrorist. This kind of Asylum is granted to criminals who expect prosecution. It is also granted to political criminals.

Resolution of General Assembly of UNO, 1967 on 14th Dec, 1967, a resolution passed in General Assembly which includes following points.

  1. When a person request to Asylum, his request should not be turned down ordinarily.
  2. If a state feels difficulty to grant Asylum, then it should take appropriate measures for person’s safety.
  3. When a state grants Asylum other state should respect it.

ARTICLE 19 OF CONVENTION ON TERRITORIAL ASYLUM AT CARACAS 

“Every state has the right in the exercise of its sovereignty to admit into its territory such person as it deems advisable without giving rise to complaints by any other states.”

CATEGORIES OF TERRITORIAL ASYLUM.

According to Starke:

  1. Political Asylum i.e., for political defectors or political oppressions.
  2. Refugee Asylum for refugees due to prosecution.
  3. General Asylum: for person seeking economic betterment.

EXTRA-TERRITORIAL ASYLUM/DIPLOMATIC ASYLUM.

Extra territorial Asylum is a legal fiction i.e., any grant of privilege to a foreign sovereign or an ambassador etc.

Asylum granted by a country to resident national allowing them to remain in other countries i.e., foreign nationals allowing them to remain under the jurisdiction of laws of their countries.

It generally extended only to diplomatic agents under diplomatic immunities.  Extra-Territorial Asylum is granted by a state outside its territory in the following ways:-

Place where it is granted:

It is granted outside the territory of state.

Person to whom it is granted:

Only to political criminals.

ASYLUM CASE: COLOMBIA VS. PERU (1950).

It was held by ICJ that there was no general right of Diplomatic Asylum. Circumstances where Extra-Territorial Asylum may be granted:-

  1. As a temporary measure to individuals in physical danger.
  2. Where there is a binding local customary rule that diplomatic Asylum is permissible.
  3. Under special treaty.

TYPE OF EXTRA-TERRITORIAL ASYLUM.

Asylum in Foreign Embassy:

According to Starke Asylum is granted in foreign Embassy by a state in most exceptional cases like a temporary measure to a person in danger of mob or state oppression or where there is binding local custom that diplomatic Asylum is permissible under special Treaty between both states one from refugees belongs and other where he requested for Asylum.

Dalai Lamo Asylum case.

Dalai lama and his followers frustrated from China’s oppression, seek Asylum in India, which was granted.

Haya Do Le Tore case 1951

There was no extreme danger for Haya Do Le Tore so international court of Justice abrogated Asylum.

Julian Assange Case:

Julian Assange has been granted by the Ecuador Embassy in London since 2012 and he still there.

Asylum on the premises of International institution.

International law does not recognize any such right of international institutions to grant any such Asylum on their premises. However, in case of imminent threat of violence or attack such asylum may be temporarily granted.

Asylum in Consular Premises:-

There same rule as that of Embassy would apply to grant of Asylum by the head of consular premises.

Asylum in Warship:

Such refugees to be granted during political differences to person fleeing from imminent personal danger.

Asylum in Merchant vessels:

Merchant vessels do not enjoy the privilege of immunity from local jurisdiction and as such is incapable of granting Asylum.

Asylum in Legation: (official residence of diplomats.)

Under inter law, Asylum cannot be granted in the official residences of diplomats.

According to Starke:-

Asylum is interconnected with extradition, as it stops where extradition begins.

Difference B/W territorial and extra-Territorial Asylum.

Power to Grant:

Power to grant territorial Asylum is an incident of the territorial sovereignty itself whereas the granting of extra-territorial asylum is rather a derogation from the sovereignty of the territorial state from its authorities enjoying protection from apprehension.

The right to grant extra-Territorial Asylum is exceptional and must be established in each case.

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