Asylum under International Law

This article explains Asylum under International Law and also various differences

Definition of Asylum:

• The word Asylum is derived from the Greek word ‘Asylia,’ which means ‘inviolable place.’
• Asylum refers to a situation where a State refuses to surrender a person to the requesting State and provides shelter and protection to them in its own territory.
• A person who is granted asylum is called an Asylee.

Elements of Asylum:

1. Permanent Shelter (which is more than a temporary refuge)
2. A degree of active protection by the State which has granted Asylum.

History and Basis of Asylum under International Law:

• Asylum is a very old and traditional concept. It was practised in ancient times as well. For example, Lord Rama gave Asylum to Vibhishan.
• There is no International Convention on Asylum, so it is governed by Security Council Resolutions, State Practice, Municipal Laws of States, and Judicial Decisions.

Security Council Resolution of 2001:

• Generally, a State has the right to grant asylum to a person found within its territory, but this right is not absolute.
• The Security Council, through Resolution No. 1373 in 2001, declared that “All States shall deny safe haven (Asylum) to those who finance, plan, support or commit terrorist acts.”
• However, this resolution has only persuasive value.

Reasons for granting Asylum:

1. Asylum may be granted to save a person from the jurisdiction of local authorities in their home State, where there are concerns about receiving a fair trial.
2. Asylum may be granted on humanitarian grounds, such as saving a person from cruel or barbaric punishment.
3. Asylum may be granted based on practical considerations, for example, when a rebel may become a ruler in the future, as was the case with Ayatollah Khomeini being granted asylum by France.

Can Asylum be claimed as a matter of right?

• According to Article 14 of the Universal Declaration of Human Rights (UDHR) from 1948, “everyone has the right to seek and enjoy in other countries, asylum from persecution.”
• However, a person can only enjoy asylum if it is granted to them.
• States are not under any legal duty to grant asylum and have complete discretion in this regard, subject only to extradition treaties signed with other States.

Difference between an Asylee and a Refugee in International Law:

• Every refugee is an asylee, but every asylee is not a refugee.
• A refugee is someone who meets the criteria of the 1951 Refugee Convention and has been recognized as such through the Refugee Status Determination (RSD) process.
• An asylee, on the other hand, is someone who has been granted asylum by a State due to fear of persecution or other valid reasons.

Difference between a Refugee and an Internally Displaced Person:

• A refugee is someone who has crossed an international border and seeks protection in another country due to a well-founded fear of persecution.
• An internally displaced person (IDP) is someone who has been forced to flee their home but remains within their country’s borders.

Forms of Asylum in International Law

Asylum can take different forms depending on the circumstances and location. Here are the main forms of asylum:

1) Territorial Asylum:

Territorial asylum refers to the granting of asylum within the territory of a state. It means that a person seeking asylum is allowed to enter and remain in the country where they have sought protection. They are provided shelter and protection by the host state.

2) Extra-Territorial Asylum:

Extra-territorial asylum involves granting asylum to individuals outside the territory of the granting state. This form of asylum can occur in various situations:

a. Asylum in Embassy/High Commission:

In some cases, individuals may also seek refuge within the premises of an embassy or high commission of a foreign country located in their home country or in a third country. The diplomatic mission grants them protection.

b. Asylum in Consulate:

Similar to asylum in an embassy, individuals may also seek asylum within the premises of a consulate of a foreign country. Consulates are usually located in different cities within a country and provide limited diplomatic services.

c. Asylum on board a Warship:

There have been instances where individuals in danger have sought asylum on board warships of foreign navies. Warships, while in international waters, can provide temporary refuge and protection.

d. Asylum on board a Merchant Vessel:

Similar to asylum on a warship, individuals may seek refuge on board a merchant’s vessel. This could occur when the vessel is docked in a foreign port or sailing in international waters.

e. Asylum on premises of International Institutions or Organizations:

Some international institutions or organizations may also have premises or compounds where individuals in need of protection can seek asylum. These institutions may have agreements with states to grant asylum within their premises.

It’s important to note that the recognition and acceptance of extra-territorial asylum may vary among different states. Some states may not recognize or accept this form of asylum.

Each form of asylum carries its own legal implications and considerations, and the granting of asylum is subject to the laws and regulations of the country providing protection.

Asylum and Indian Practice:

In the context of Indian practice, the concept of asylum is recognized, but it is important to note that India has specific policies and practices regarding asylum. Here are some key points related to asylum and Indian practice:

1. Territorial Asylum: India recognizes and grants territorial asylum, which means that individuals who seek protection within the territory of India may be granted asylum and allowed to stay in the country.
2. Non-Recognition of Extra-Territorial Asylum: India does not recognize or accept extra-territorial asylum. In 1967, India issued a circular to all foreign diplomatic missions in India stating that it does not recognize the right of such missions to grant asylum to any person within their premises. This means that individuals seeking asylum cannot claim refuge within foreign diplomatic missions in India.
3. Violation of Sovereignty: India has taken a stance that the grant of diplomatic asylum within its territory or by its diplomatic missions would be considered a violation of its sovereignty. This position was stated in a statement issued on November 3, 1975.
4. Legislation: In 2015, two bills related to asylum were introduced in the Indian Parliament, but they have not been taken up for consideration to date. The Asylum Bill, 2015, and The Protection of Refugees and Asylum Seekers Bill, 2015 were introduced to provide a legal framework for addressing asylum-related issues in India.
5. Historical Example: One notable example of India granting territorial asylum is the case of the Dalai Lama. In 1959, India granted territorial asylum to the Tibetan spiritual leader, the Dalai Lama, and also his followers. This act was criticized by China, citing interference in its internal affairs.

Asylum and Extradition

Asylum and extradition are two contrasting concepts in the realm of international law and the treatment of individuals seeking refuge or facing criminal charges. Here’s an explanation of asylum and extradition and how they differ:

1. Asylum: Asylum is a legal status granted by a country to an individual who seeks protection from persecution or serious harm in their home country. The granting of asylum provides the person with shelter and protection within the territory of the asylum-granting country. Asylum is typically granted to individuals who can demonstrate a well-founded fear of persecution based on factors such as their race, religion, nationality, political opinion, or membership in a particular social group. Asylum is often granted to political dissidents, human rights activists, and individuals fleeing war or violence. The granting of asylum is a discretionary act by the receiving state and is not an automatic right.
2. Extradition: Extradition, on the other hand, is the legal process by which one country requests and obtains the surrender of a fugitive from another country to face criminal charges or serve a sentence. It involves the transfer of an individual accused or convicted of a crime from one jurisdiction to another. Extradition is based on bilateral or multilateral agreements between countries that establish the legal framework and conditions under which extradition can take place. The requesting country must provide evidence of the individual’s alleged involvement in a crime and satisfy the legal requirements set forth in the extradition treaty or agreement.

Key Differences:

• Purpose: Asylum is granted to protect individuals from persecution or harm, while extradition is a mechanism to ensure that individuals accused or convicted of crimes face justice in the requesting country.
• Legal Basis: Asylum is based on principles of humanitarian protection, human rights, and international law. Extradition is based on bilateral or multilateral treaties and agreements between countries.
• Subject: Asylum is typically granted to individuals seeking protection, while extradition is sought for individuals facing criminal charges.
• Discretion: The granting of asylum is at the discretion of the receiving state, whereas extradition is subject to legal procedures and requirements set forth in the relevant extradition treaties.
• Protection vs. Prosecution: Asylum provides protection to individuals, while extradition aims to facilitate the prosecution or punishment of individuals for alleged criminal offenses.

It’s important to note that the specific procedures and requirements for asylum and extradition vary among countries and are subject to international treaties and domestic laws.