TAMIL NADU NATIONAL LAW UNIVERSITY

( A State University Established by Act No.9 of 2012 )

NavalurKuttapattu, Srirangam, Tiruchirappalli - 620 009. Tamil Nadu

PAPER: INTERNATIONAL ORGANIZATION

TOPIC: ASYLUM

Submitted to
Mr. Abhimanyu singh
Assistant Professor of Law
Tamil Nadu National Law University,
Trichy.

Submitted by
A. MANORANJAN
-BC0150014
V year, B.com. LL.B. (Hons.)
Tamil Nadu National Law University
Trichy-27

1
 RESEARCH METHODOLOGY

Objectives:
The objective of this project is:
1. To highlight the International status on right to seek Asylum.
2. To understand the law for Protection of refugees.

Methodology:
This Research Project is doctrinal in nature. Accumulation of the information on the topic includes
wide use of primary sources such as cases as well as secondary sources like books, e-articles etc. The
matter from these sources have been compiled and analysed to understand the concept and reproduced
it afresh in this project.

Websites, dictionary and articles have also been referred.

Questions:
This project aims to answer questions such as What is aasylum? What is an asylum seeker? Is
asylum a right of person? What are its various forms such as Territorial and Diplomatic asylum.
It further tries to answer that What are the procedures and the minimum conditions for granting
asylum?

Mode of Citation
This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and
bibliography.

Chapterisation
Chapter 1 - Introduction to the topic along with the research.
Chapter 2 - Right to receive asylum and its various
Chapter 3 - International instruments for protection of refugees.
Chapter 4 -conclusion of the project..

Scope of Study
Due to time constraint this project aims to cover the International status of Right to
receive Asylum in a nutshell. This project does not cover in detail each mode. The
various types of asylum have been dealt in brief giving mention to procedure while
granting asylum. The project report is descriptive and thus it does analyse the
protection of refugees with the help of Examples.

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 TABLE OF CONTENTS

 INTRODUCTION ………………………………………………4
 KINDS OF ASYLUM ………………………………………………5
 INTERNATIONAL INSTRUMENTS FOR
PROTECTION OF REFUGEES ……………………………………6
 PURPOSES BEHIND ASYLUM ……………………………………9
 PRINCIPLE OF NON-REFOULEMENT …………………………10
 IS ASYLUM A RIGHT OF PERSON? ……………………………..11
 CONCLUSION ……………………………………………………...12
 BIBLIOGRAPHY …………………………………………………...13

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INTRODUCTION:

A refugee is a person who "owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group, or political opinion,
is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling
to avail himself of the protection of that country"

- The 1951 Convention relating to the Status of Refugees

The legal dictionary reference characterizes Asylum as "Safeguard from arrest and extradition,
offered particularly to political refugees by a country or by an embassy or other organization
that has diplomatic resistance"1. For quite a long time, individuals have been segregated and
compelled to flee their homes due to conflict, political, racial and religious mistreatments,
catastrophic events and inhuman treatments that occurred in their societies. In a state of exile,
they looked for either shelter or the protection of other nations. People have migrated since the
earliest societies. The land, given to quite a bit of their essential needs and soon, "territory
became associated with property"2 .Sacred places initially gave such an asylum and researchers
are of the view that "the act of asylum is as old as humankind itself'. The term is alluded to
those situations where the regional State decays to surrender a man to the asking for State, and
gives safe house and assurance in its own particular region. Consequently shelter includes two
components.

1. Firstly, the shelter, which is in more than a temporary asylum.

2. besides, a level of dynamic protection with respect to the authorities responsible for the
territory of asylum.3

The current refugee law has its origin in the result of the Second World War and also in the
refugee crises of the interwar years that preceded it. The Declaration of Human Rights of the
United Nations, 1948, Article 14 proclaims that everyone has the right to seek and enjoy in the
asylum of a nation different from persecution. The international convention controlling the

1
http://dictionaryfindlaw.com/definition/asylum.html (visited on March 21, 2018).
2
Daniel Warner, “Migration and Asylumes: a challenge for the 21st century”, Kluwer Law International, The
Hague, 1997, p. 58
3
I.A. Shearer, Starke’s International Law 323 (Butterworth, London, 11th edn. 1994).

4
right of refugees is the 1951 Convention on the Status of Refugees (1951 Convention) and its
Optional Protocol of 1967 that is identified with the Refugee Statute (Optional Protocol of
1967).

The 1951 Convention establishes the definition of a refugee and also the principles of non-
refoulement and the rights granted to those who enjoy refugee status. Although the definition
of the 1951 Convention remains the prevailing definition, regional human rights treaties have
modified the refugee definition in response to crises of displacement not covered by the 1951
Convention. However, the basis of Refugee procedures and conclusions about the state of exile
are left to each State Party to create. This has led to inconsistencies among several states as
governments develop refugee laws in the light of their various assets, national security concerns
and stories of forced migration. Regardless of the contrasts at the national and territorial levels,
the general objective of the advanced administration of displaced persons is to guarantee the
persons forced to escape from their homes, arguing that their nations are not willing or able to
protect them.

RIGHTS OF REFUGEES AND ASYLUM-SEEKERS:

International refugee law or international human rights treaties neither articulate an explicit
entitlement to asylum for the individuals concerned, nor impose an obligation on states to grant
asylum. Individuals have a right to seek asylum, not to be granted asylum, and the states have
the right to grant asylum, but no obligation. The Geneva Convention does not guarantee
asylum-seekers the right to be granted refugee status, even if they fulfil the conditions to be
considered refugees; this remains at state discretion. States have, however, to refrain from
actions that would endanger asylum-seekers, especially from returning them to their country
of origin. Each state is also free to establish the conditions for granting asylum. This situation
is reinforced by the fact that nobody is entitled to interpret the Geneva Convention
authoritatively, unlike most other international human rights treaties. The United Nations High
Commissioner for Refugees (UNHCR) has the duty to supervise its application, but has no
authority to provide mandatory interpretations. The task of interpreting the Convention has
thus fallen to domestic law-makers and courts.

Because of their vulnerable situation, asylum-seekers are sometimes forced to enter their
country of refuge unlawfully. The Geneva Convention does not stipulate that states are required
to grant asylum-seekers entry to their territory. Entering a state party to the Convention
unlawfully does not forfeit protection (Article 31) and illegal entrants can still qualify as

5
refugees if they fulfil the relevant criteria. ‘Refugees unlawfully in the country of refuge’
should not be punished for their illegal entry if they come directly from the territory where their
life and freedom was threatened and if they report themselves immediately to the authorities,
showing good reason for their illegal entry (Article 31). Restrictions on their movement can be
imposed until their status is regularised. To ‘refugees lawfully in the territory,’ Article 26 of
the Convention grants the right to choose their residence and to move freely. The UNHCR
considers that detention of asylum-seekers should be a measure of last resort. It has drafted
a set of guidelines for the use of detention of asylum-seekers. In certain countries, refugees
are confined to refugee camps and their movement is restricted. In other countries, including
in many developed countries, detention of irregular migrants until their status as refugees is
determined is a common practice.

The Convention establishes a duty on states to accord rights to refugees that in certain areas are
on a par with those of their population, while in others are similar to those granted to the most
favoured aliens or to aliens in general. Rights accrue to refugees incrementally depending on
the legality of their situation in their host country and the duration of their stay there. The first
tier of rights applies merely on the basis of presence within a state party’s territory, even if this
presence is illegal. Such rights include freedom of religion (Article 4), property rights
(Article 13), the right to primary education (Article 22), the right to access to the courts
(Article 16(1)), a limited right to move freely, subject to justifiable restrictions (Article 31(2))
etc. The second tier of rights are to be granted when refugees are ‘lawfully present’ in the host
state (for example while their asylum claim is processed), including the right to self-
employment (Article 18) and the right to move freely, subject to regulations applicable to aliens
in general (Article 26). Other rights are accrued when refugees are ‘lawfully staying’ in a state
party (usually after recognition of their refugee status by the state concerned), including the
right to paid employment (Article 17) under conditions no less favourable than for other aliens.
The right to work without any restriction accrues only after a period of three years’ extended
residence (Article 17(2)). The absence in the Convention of a definition of the concepts of
‘present lawfully’, ‘staying lawfully’, or ‘residing lawfully’ affords states considerable
discretion in according rights to refugees. In practice, states are free to grant permanent or
temporary residence and to assign, or decline rights to work and move freely. This leads to
great differences as regards refugees’ rights.

The Geneva Convention definition of refugees remains dominant in the Treaty on the
functioning of the European Union(Article 78) and the EU Charter of Fundamental

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Rights (Article 18). The EU has an extensive set of legislation on asylum-seekers, which has
often been the object of critical review by the UNHCR. The Qualification Directive also
foresees that other persons entitled to international protection should be treated on a par with
refugees.

KINDS OF ASYLUM:

 Territorial asylum

Territorial asylum is asylum that given in the place has a jurisdiction of asylum donor nation.
Territorial asylum can be given on shore as well as on water if shelter searchers come into by
ship, and live on its amid asylum seeking process, or until go to other nation .4 In dealing with
giving territorial asylum can be classified into:

a. Political asylum because of oppression to people by authority.

b. Refugee asylum given by reasons for fear of persecution in country of origin

c. General asylum given to escapees from their country of origin to get economic development
(but their status are not immigrant)

It is designed and employed principally for the protection of people accused for political
offenses, for example, treason, desertion, Sedition, religious refugees. An outstanding case is
Dalai Lama of Tibet5.

The General Assembly said in the Declaration of regional shelter (1967) that the allow of
asylum is a compassionate demonstration and it can't be viewed as disagreeable by another
state. States allowing asylum might not allow people occupied with exercises in opposition to
the reason and standards of the U.N.

 Extra-territorial asylum

Asylum that given at the place which has a place with shelter giver nation or lawful essential
however the area is in other state. When all is said in done this place conceded as sacred place
or having insusceptibility from ward the state where put in.

4
(starke, 2007 :476).
5
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2875755

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  Diplomatic Asylum

The conceding of asylum in the legation (working in which ambassador’s work) premises is
known as discretionary shelter. It ought to be conceded as an impermanent measure to people
physically in threat. It is a remarkable and dubious measure since it pulls back the guilty party
from the purview of the regional state.

CASE:

Haya Dela Torra Case

Haya Dela Torra, a Peruvian case was charged with rebellion. Columbia granted him asylum
in her asylum in her embassy in Peru. After granting asylum, ambassador of Columbia
requested Peruvian Government to provide facility to enable Columbia to take Haya Dela Torra
outside Peru. Peru did not agree with the request and rejected it. Columbia contended that
asylum was granted because Haya Dela Torra was accused of a Political Crime. The matter
was refered to International Court of justice. The International Court of Justice held that Haya
Della Tora was a political offender and Columbia was bound to surrender Haya Dela Torra.
There was irregularity in granting asylum. Because there was no urgency as prescribed by the
Havana convention, 1928.

There was no rule recognising the authority of International Organisation to grant asylum in
the premises of the International Organisation. However temporary asylum may be granted in
case of danger of imminent violence.

 Asylum in the premises of International Institutions

There is no broad right or work on with respect to giving asylum in the premises of global
foundations and of particular offices, even on philanthropic grounds. In any case, impermanent
asylum in extraordinary cases can't be precluded. e,g Najibullah, previous leader of
Afghanistan looked for asylum in UN home office in Kabul, later he was executed by Taliban.

 Asylum on Warships

The warships and open vessels enjoy invulnerability under global law and it has been claims
that there exists a right of asylum on ships. Shelter in dealer ships can't be conceded in light of
the fact that vendor vessels don't have insusceptibility.

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INTERNATIONAL INSTRUMENTS FOR PROTECTION OF REFUGEES:

International legal instruments take the form of a treaty (also called agreement, convention,
and protocol) which might tie on the contracting states. At the point when negotiations are
finished, the content of a treaty is established as a real and authoritative and may be "signed"
to that impact by the representatives of states. There are different means by which a state
communicates its consent by a treaty. The most widely recognized are ratification or accession.
Another treaty is "signed" by those states who have arranged the instrument. A state which has
not partaken in the arrangements may, at a later stage, "consent" to the bargain. The settlement
goes into compel when a pre-decided number of states have endorsed or acquiesced to the
bargain.

At the point when a state endorses or consents to a settlement, that state may reserve a spot to
at least one articles of the arrangement, unless reservations are disallowed by the bargain.
Reservations may regularly be pulled back whenever. In a few nations, universal settlements
outweigh national law; in others, a particular law might be required to give a worldwide
arrangement, albeit confirmed or agreed to, the power of a national law. Basically all expresses
that have endorsed or consented to a universal arrangement must issue orders, change existing
laws or present new enactment all together for the settlement to be completely successful on
the national region. Numerous worldwide bargains have a system to screen the execution of
the arrangement. The Refugee Convention does not have such a body, to the point that screens
state commitments and duties towards asylum searchers.

The accompanying national and international arrangements decide measures for the assurance
of refugees and uprooted people:

•Universal Declaration of Human Rights (1948) (article 14):- The principal global record
that perceives the right to look for and appreciate asylum from mistreatment.

•Geneva Convention with respect to the Protection of Civilian Persons in Time of War
(1949) (article 44, 70):- This bargain ensures refugees amid war. Exiles can't be dealt with as
"foe outsiders".

•Protocol Additional to the Geneva Conventions of 12 August 1949, and identifying with
the Protection of Victims of International Armed Conflicts (Protocol 1) (1977) (article 73)
:- "People who, before the start of dangers, were considered as stateless people or outcasts ...
might be secured persons..., in all conditions and with no antagonistic qualification."

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•Convention Relating to the Status of Refugees (1951):- This was the principal universal
understanding covering the most key parts of a displaced person's life. It explained an
arrangement of human rights that ought to be in any event proportionate to flexibilities
delighted in by remote nationals living lawfully in a given nation and much of the time those
of residents of that state. It perceived the universal extent of exile emergencies and need of
global participation - including trouble sharing among states - in handling the issue. Starting at
1 October 2002, 141 nations had confirmed the Refugee Convention.

•International Covenant on Civil and Political Rights (1966) (article 2, 12, 13):- The
fundamental worldwide bargain on common and political rights stipulates that states ought to
guarantee the common and political rights of all people inside its domain and subject to its
locale (article 2). The Covenant additionally ensures opportunity of development and forbids
constrained removal.

•Protocol Relating to the Status of Refugees (1967):- Removes the geological and time
restrictions composed into the first Refugee Convention under which chiefly Europeans
engaged with occasions happening before 1 January 1951 could apply for displaced person
status.

Preclusion on the constrained return of an exile is called non-refoulement and is a standout

amongst the most key standards in universal displaced person law. This standard is laid out in
Article 33 of the Convention Relating to the Status of Refugees, which says that no state
"should oust or restore an outcast in any way at all to the wildernesses of regions where his life
or flexibility would be undermined by virtue of his race, religion, nationality, participation of
a specific social gathering or political feeling.

Asylum searchers may have just endured detainment and Torture in the nation from which they
have fled. Along these lines, The outcomes of detainment might be especially genuine, causing
serious enthusiastic and mental pressure. Article 31 of the Refugee Convention says that exiles
ought not be punished for having entered a nation wrongfully on the off chance that they have
come straightforwardly from a place where they were in peril and have made themselves
known to the specialists. Along these lines, asylum searchers ought not be kept for being in
control of produced personality papers or for pulverizing character or travel archives.

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Articles 12 - 30 of the Refugee Convention set out the rights which people are qualified for
once they have been perceived as Convention refugees:

 All refugees must be conceded character papers and travel reports that enable them to
movement outside the nation
 Refugees must get an indistinguishable treatment from nationals of the getting nation.
 Refugees must get the same treatment as to nationals of a remote nation.
 Refugees must get an indistinguishable treatment from that agreed to outsiders for the
most part.
 Refugees must get the most favourable treatment possible, which must be in any event
as ideal to that concurred outsiders for the most part in a similar situation.

PURPOSES BEHIND ASYLUM:

A state stipends asylum to a man in view of numerous reasons6.

1. It is allowed to spare a man from the purview of the nearby specialists. It is expected that he
would not get reasonable trial, if removed, as a result of the distinctions in sees as to his political
or religious exercises.

2. A man might be granted asylum on additional lawful grounds or to state on compassionate

grounds. The International Court of Justice in Corfu Channel case7 , expressed that 'asylum
might be allowed on compassionate grounds keeping in mind the end goal to ensure political
opponents8 against any measures of a plainly additional legitimate character which a legislature
may take or endeavor to take against its political Opponents. In this manner asylum is conceded
for anticipating other human rights infringement.

3. National Security likewise assumes a critical part in allowing asylum. The Offender who
might be a revolutionary today may turn into the ruler in future date. All things considered, the
relationship would be stressed in the event that he is removed9.

6
Battjes, Hemme, and Hoogleraar Europees asielrecht aan de Vrije. European asylum law and international
law. M. Nijhoff, 2006.
7
ICJ Reports (1949) p.4
8
Ibid,p. 282
9
Mollard, C., 2001. Asylum: The truth behind the headlines.

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In spite of the fact that a State may concede asylum subsequent to contemplating of any of the
above components, States receive a Cautious approach before doing as such. Its suggestions
on the Existing Relationship with State of whose Persons asylum is conceded is very much
examined in light of the fact that it typically influences the cordial relations of two States
notwithstanding a reasonable Provision in the Declaration on regional Asylum that allow of
asylum should not be considered as a threatening demonstration. Shelter conceded to Dalai-
lama and different Tibetans by India brought about more Strained Relationship amongst India
and china is a case.

PRINCIPLE OF NON-REFOULEMENT:

The reason for the Convention is to guarantee insurance to outcasts, as characterized in the
Convention, by guaranteeing that they are not came back to their nation or sent to whatever
other region where they could confront oppression. Article 33 advances what has turned out to
be known as the standard of non-refoulement: 'No Contracting State should remove or return
('refouler') an exile in any way at all to the wildernesses of domains where his life or
opportunity would be undermined because of his race, religion, nationality, participation of a
specific social gathering or political assessment'10. This assurance does not have any significant
bearing however to people who speak to a security risk to their host nation (Article 33(2)). The
Geneva Convention does not prohibit expulsion of refuge searchers to safe third nations.
Refuge searchers unlawfully show in a state can be required to look for security in another
nation, yet those legitimately introduce can't be removed from its region (Article 32).

This standard has progressed toward becoming piece of other worldwide human rights
arrangements either unequivocally (Convention against Torture, Article 3) or verifiably
through the applicable law (European Convention on Human Rights, Article 3 and International
Covenant on Civil and Political Rights, Article 7) and, as indicated by a few researchers,
likewise part of standard global law, making it generally official. While in the Refugee
Convention, the extent of the non-refoulement standard is constrained to outcasts, and
exemptions to it (for reasons of national security) are allowed, these impediments don't exist
in the other three settlements. States signatories of these worldwide settlements are along these
lines obliged not to come back to their nations people who may confront torment or barbarous,

10
Wouters, C.W., 2009. International legal standards for the protection from refoulement (Doctoral
dissertation, Intersentia Publishers, Antwerpen).

12
cruel or corrupting treatment or discipline. They are however not qualified for some other rights
gave under the Refugee Convention since they are not displaced people inside its extension.

IS ASYLUM A RIGHT OF PERSON?

It is said that a man has a right to get asylum in different States. All inclusive Declaration of
Human Rights under Article 14, sets out that 'everybody has the right to look for and to
appreciate in different countries asylum from persecution'. This right was communicated as a
response and stateless persons after the World War II. The above arrangement may give a
feeling that a man has a right to get asylum in any state yet it is to be noticed that the report
was received by the General gathering by method for revelation and all things considered it has
no lawful power. The privilege to give shield is the privilege of the states. In 1950, the Institute
de Droit International insisted the character of asylum as a discretionary power having a place
with sovereign States. It may be communicated that the UDHR under Article 14 gives, for a
privilege to 'search for and acknowledge' asylum. Fitting to acknowledge asylum along these
lines infers near one side to value it if it is permitted. Further, if asylum is seen as to that of a
privilege of a man, it would suggest that States have a contrasting commitment with give
asylum. Regardless, it isn't substantial. States under International Law have no such
commitment to offer asylum to a man. It hones complete watchfulness in such way subject to
particular obligations made by strategy for complete of evacuation settlements. The
constitutions of different Countries expressly give the privilege of safe house to individuals
abused for political reasons, anyway it can't yet be said that such a privilege has transformed
into a 'general rule of law' saw by developed nations and in this way surrounding bit of
International law. It may be seen that the privilege to permit asylum vests in the state. It is
polished in view of the manage of territorial power. Notwithstanding the way that the Draft
Convention on Territorial Asylum gives that the social occasions to the custom may use their
'best endeavors' in a 'humane soul' to give asylum in their area to a man qualified under Draft
Convention, it can't be deciphered as that States have under any authentic responsibilities to
enable asylum to them.

CONCLUSION:

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International refugee protection has always been important since time immemorial. Since the
adoption of 1951 UN Convention Relating to the Status of Refugees more than sixty years ago,
millions of people got displaced in many parts of the world. The main goal of international
refugee law is to deliver, encourage and spread protection to the refugees, people in refugee
like and people outside the country of their origin or people who need it in case of displacement
and migration. The understanding of protection depends upon the patterns of influx and exodus
of refugees in the circumstances that demand specific application of law. Protection is required
for individual as well as group refugees in a given situation. Although, protection of refugees
under international law is based on the practice of states and international institutions, treatment
of minorities and indigenous people who draw protection policies from norms of international
human rights law, law of asylum and international rule of law. However, this understanding is
not sufficient to address the plight of refugees and their resolution. There is a need to consult
International Human Rights Law along with other UN Conventions and treaties relevant to the
refugee protection. The Refugee protection has also been developed within the local provisions
and institutional jurisprudence under African Union, European Court of Human Rights and
Inter-American Commission and Court and etc. These frameworks have considerably
strengthened overall international refugee law and protection.

The goal of the project is to support new refugee legal aid programming in the Global South,
particularly in places where such programming has been overlooked because either or both the
lack of the Refugee Convention and the absence of local refugee legislation. It aims to develop
a better understanding of the process of litigation and factors that influence its success. As both
the UN more generally and UNHCR more specifically move towards a renewed emphasis on
the rule of law, the project will suggest pathways to protection that are consistent with this new
emphasis and which pay attention to the expertise and agency of local legal and refugee
communities.

BIBLIOGRAPHY:

 http://dictionaryfindlaw.com/definition/asylum.html (visited on March 21, 2018)

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2875755 (visited on March 28,
2018)
 Battjes, Hemme, and Hoogleraar Europees asielrecht aan de Vrije. European asylum
law and international law. M. Nijhoff, 2006.

14
 Wouters, C.W., 2009. International legal standards for the protection from
refoulement (Doctoral dissertation, Intersentia Publishers, Antwerpen).
 Mollard, C., 2001. Asylum: The truth behind the headlines.
 Daniel Warner, “Migration and Asylumes: a challenge for the 21st century”, Kluwer
Law International, The Hague, 1997.
 I.A. Shearer, Starke’s International Law 323, Butterworth, London, 11th edn. 1994.
 ICJ Reports ( 1950)
 ICJ Reports (1949)

15