The Right to Asylum in International Law

Introduction

Asylum is a vital component of international human rights law, providing protection and shelter to individuals fleeing persecution and conflict. The concept encompasses both the granting of temporary refuge and active protection by a state to a political refugee from another country. The principle of asylum is rooted in the Universal Declaration of Human Rights and further elaborated in various international conventions and declarations. This paper examines the meaning and definition of asylum, the distinction between territorial and extra-territorial asylum, and the international instruments and case law governing the right to asylum.

Meaning and Definition: Asylum refers to the protection and shelter provided to a political refugee by a state, which involves both a degree of permanence and active protection by the authorities of the asylum-granting state. The Institute of International Law defines asylum as the protection granted by a state to a person seeking it within the state's territory or any other place under its control.

Right to Asylum: According to Article 14 of the Universal Declaration of Human Rights, "Everyone has the right to seek and enjoy in other countries asylum from persecution." However, the declaration recognizes the right to seek asylum but does not obligate states to grant it. The so-called right of asylum primarily refers to the state's authority to allow a persecuted individual to enter and remain in its territory. The 1967 United Nations Declaration on Territorial Asylum, while significant, also lacked binding force, leading to efforts to establish a more robust legal framework through conventions.

Types of Asylum:

1. Territorial Asylum: Granted within the territory of the asylum-giving state, it is considered an exercise of the state's territorial sovereignty. This type of asylum is supported by various international agreements and conventions, such as the 1945 Convention on Territorial Asylum and the 1951 Refugee Convention.

2. Extra-territorial or Diplomatic Asylum: Granted outside the territory of the state, typically within embassies or on public vessels, this type of asylum often involves derogation from the territorial sovereignty of the state where the offense occurred. It is recognized only under exceptional circumstances, such as urgent danger or well-established local custom.

International Protection of Refugees: The 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol provide the primary legal framework for refugee protection. These instruments emphasize non-discrimination and non-refoulement, ensuring that refugees are not returned to places where they face serious threats. The U.N. High Commissioner for Refugees (UNHCR) plays a crucial role in protecting refugees and facilitating their resettlement or integration.

Notable Examples:

1. Dalai Lama and Tibetan Refugees: India granted asylum to the Dalai Lama and his followers fleeing Chinese repression. This action, rooted in India's territorial sovereignty, has been a point of contention between India and China but aligns with international principles of asylum.

2. Bangladeshi Refugees (1971): During the Bangladesh Liberation War, millions of refugees fled to India due to genocide and repression by Pakistan's military regime. India's acceptance of these refugees was consistent with international humanitarian standards and the principles of the 1951 Refugee Convention.

Diplomatic and Consular Asylum:

• Foreign Embassies: Generally, international law does not recognize a right for embassies to grant asylum to individuals accused of crimes within the host state. However, temporary asylum may be granted in cases of imminent danger, political corruption, or established local custom.

• Consular Premises and International Institutions: Similar principles apply to asylum in consular premises and international institutions. Asylum may be granted temporarily in extreme cases of danger, but there is no general right to asylum in these premises.

• War Ships: The status of fugitives seeking refuge on warships is debated, with some arguing that local authorities should be able to arrest and remove them, while others believe they should be protected by the ship's commander.

Conclusion

The right to asylum is a cornerstone of international human rights protection, offering refuge and protection to individuals fleeing persecution. Despite the recognition of this right in various international instruments, there remains no corresponding obligation on states to grant asylum. The distinction between territorial and extra-territorial asylum further complicates the legal landscape, with states exercising significant discretion in granting asylum within their territories while facing restrictions in diplomatic contexts. The examples of the Dalai Lama and Bangladeshi refugees illustrate the application and challenges of asylum in practice. As the international community continues to grapple with refugee crises, it is imperative to strengthen legal frameworks and ensure that the right to asylum is upheld consistently and effectively.

References

1. Universal Declaration of Human Rights (1948), Article 14.

2. United Nations Declaration on Territorial Asylum (1967).

3. Convention Relating to the Status of Refugees

   (1951) and its 1967 Protocol.

4. Asylum Case (Colombia v. Peru), International Court of Justice (1950).

5. Convention on Territorial Asylum (1945), Caracas.

6. Draft Declaration of Asylum, United Nations Human Rights Commission.

7. General Assembly Resolution 3456 (XXX), United Nations (1975).

8. International Protection of Refugees, United Nations High Commissioner for Refugees (UNHCR).

9. Sadako Ogata, U.N. High Commissioner for Refugees (1999-2000).

10. Dalai Lama and Tibetan Refugees in India, case study.

11. Bangladeshi Refugee Crisis, 1971.

12. Haya Dela Torre Case, International Court of Justice (1951).

Book:

Dr. S. K. Kapoor – International Law & Human Rights.