Understanding Asylum: Types, Laws, and International Perspectives
Understanding Asylum
1. Introduction to Asylum
Asylum is the protection a state grants within its territory or under the control of its authorities to individuals seeking refuge. States possess the right to refuse extradition of refugees under specific circumstances.
2. Meaning and Definition
The term “Asylum” originates from the Greek word “Asylia,” signifying an inviolable place. It refers to the shelter and active protection offered by a state to a political refugee from another state upon their request.
3. Basis of Asylum
The right of a state to grant asylum stems from its sovereign right to control individuals within its territory. This right of territorial asylum is based on the principle of territorial sovereignty.
4. Elements of Asylum
Two key elements constitute asylum:
- Shelter
- Active protection by the authorities controlling the territory of asylum
5. Reasons for Granting Asylum
Asylum may be granted for various reasons, including:
- Protecting individuals from the jurisdiction of local authorities
- Humanitarian grounds
- National security concerns
The 1949 Corfu Channel Case established that asylum can be granted on humanitarian grounds to safeguard political offenders from violence.
6. Right to Claim Asylum
The Universal Declaration of Human Rights, under Article 15, affirms the right of every individual to seek and enjoy asylum from persecution in other countries.
7. Types of Asylum
There are two primary types of asylum:
I. Territorial Asylum
Territorial asylum refers to protection granted by a state within its own territory. States have the right to admit or expel individuals present within their borders, and the granting of territorial asylum is discretionary.
Reasons for Granting Territorial Asylum
The right to grant territorial asylum arises from a state’s exercise of territorial sovereignty over all persons within its territory.
Resolution of the General Assembly on Asylum (1967)
The 1967 Resolution of the General Assembly on Asylum outlines the following principles for states granting asylum:
- Asylum requests should not be rejected
- States facing difficulties in granting asylum should seek appropriate measures
- Granted asylum should be respected by other states
II. Extra-territorial or Diplomatic Asylum
Extra-territorial or diplomatic asylum occurs when a state grants protection outside its own territory. This typically involves cases where a state refuses to surrender a person sought by another state while that person is on one of its public ships in foreign territorial waters or within its diplomatic premises in foreign territory.
Classification of Extra-territorial Asylum
Extra-territorial asylum can be categorized as follows:
- Asylum in Legations or Foreign Embassies: This refers to asylum granted within an embassy located in a foreign country. There is no general right to grant asylum in legation premises, as affirmed by the International Court of Justice. However, exceptions exist for temporary asylum, cases with established custom, or treaty provisions.
- Asylum in Consulates: Rules for asylum in consulates are similar to those for diplomatic or legation asylum.
- Asylum in Warships: Warships and public vessels of foreign states enjoy exemption from the jurisdiction of the host state while in port or internal waters. Asylum in warships may be granted on humanitarian grounds, and fugitives on board are generally immune from seizure by the territorial state. The Challies vs. Fenwick case established that asylum in warships is limited to political refugees and does not extend to criminals.
- Asylum in Merchant Vessels: Merchant vessels are subject to local jurisdiction, and asylum cannot be granted to offenders unless a treaty exists to that effect.
- Asylum in Premises of International Institutions: International law does not recognize a rule regarding asylum within the premises of international institutions. However, temporary asylum may be granted in extreme cases of danger.
8. Conclusion
Asylum is a crucial aspect of international law and human rights, providing protection to individuals fleeing persecution. Understanding the types, legal basis, and international perspectives on asylum is essential for navigating this complex and evolving area of law.