Chapter 2

CONCEPT OF ASYLUM

2.1 Definition of Asylum

The term "asylum" is the Latin counterpart of the Greek word "asylon," which denotes freedom
from seizure.1 Historically, asylum has been regarded as a place of refuge where one could be
free from the reach of a pursuer. Sacred places first provided such a refuge and scholars are of
the view that "the practice of asylum is as old as humanity itself.”

According to Universal Declaration of Human Rights, "Everyone has a right to seek and enjoy in
other countries asylum from protection." Asylum is closely connected with extradition and both
are interdependent, where asylum stops extradition begins. Asylum is generally motivated by
human consideration and involves an adjustment between the legal claims of state sovereignty
and the demands of humanity.2

2.2 Elements of Asylum

Asylum involves the following two elements. These are:
 A shelter which is more than a temporary refuge. People, who live in fear of being tortured
or killed by their government, often seek asylum as do people who are persecuted for
their religious or political beliefs.
 A degree of active protection: On the part of authorities which have control over the
territory of asylum. According to Universal Declaration of Human Rights, "Everyone has
a right to seek and enjoy in other countries asylum from protection."

2.3 Asylum and Refugee

Asylum is different from refugee status. As asylum constitutes the institution for protection and
while refugee, refers to one of the categories of individuals among others, who benefit from such

1
AtleGrahl-Madsen, ‘The Status of Refugees in International Law: Refugee Character’, The Status of Refugees
in International Law, vol. I, no. 7, publisher, A. W. Sijthoff1966 p. 56.
2
Article 5 ofUniversal Declaration of Human Rights, 1948

4
protection. Aware of this distinction and of its historical, international, and constitutional
significance, an emerging trend developing among European states has been to blur it by
restricting the use of the term asylum to refugees within the meaning of the Convention Relating
to the Status of Refugees (the Refugee Convention).3

2.4Territorial and Extra Territorial Asylum:

2.4.1 Territorial Asylum

Territorial Asylum is granted by a State on its Territory, it is called Territorial Asylum. The right
to grant asylum by a State to a person on its own territory flows from the fact that every State
exercises territorial sovereignty over all persons, on its territory to anyone. The grant of
territorial asylum therefore depends upon the discretion of a State which is not under a legal
obligation to grant asylum to fugitive, as no precise rules as to grant of territorial asylum.
General Assembly calls upon the International Law Commission in 1959 to undertake the
codification of the principles and rules of international law relating to right of asylum. On 14th
December 1967 General Assembly adopted Declaration of Territorial Asylum through the
adoption of resolution. The declaration consists of a Preamble and four Articles dealing with the
principles relating to the grant of refusal of asylum. This Declaration provides that the right to
seek and enjoy asylum may not be invoked by any person with respect to whom there are serious
reasons for considering that he has committed a crime against peace, a war crimes and crimes
against humanity. Article 4 of the this Declaration provides that the State granting asylum shall
not permit persons who have received asylum to engage in the activities contrary to the purpose
and principles of United Nations. From the above provisions of the declaration it is clear that
State does not have absolute right to grant asylum. The grant of asylum is a part of which cannot
be exercised in respect of International crimes including genocides.Idi Amin have been given by
Saudi Arabia, Baby Dok have been given asylum by France, Dawood Ibrahim mafia Don is
given asylum by Dubai Government, Salman Rushdie for his controversial novel Satanic Verses
given Asylum by Great Britain, TaslimaNasreen a Bangladeshi writer for her novel Lajja granted
asylum by Sweden, Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by
Pakistan, Dalai Lama and his followers was granted asylum by government of India.
3
Article. 4 of Convention Relating to the Status of Refugees, 1951

5
2.4.2 Extra-territorial Asylum
Active protection is given outside the territory not belonging to the state granting it. Thus when
Asylum is granted by a State at places outside its own territory. It is called extra-territorial
Asylum’. It usually describes to those cases in which a State refuses to surrender a person
demanding who is not upon its own physical territory but is upon one of its public ships lying in
foreign territorial borders or upon its diplomatic premises within foreign territories.Thus Asylum
is given at legation, consular premises and warships are the instances of extra-territorial
asylum.Diplomatic Asylum, The above principle also apply in the case of Grant of asylum in
consular premises, Asylum in the premises of international institution, Asylum in Warship,
Asylum in Merchant Vessels, Asylum in the premises of international Institutions.4

2.5 Asylum as Right

During the period that anybody is an asylum seeker should be entitled with certain rights. Indeed,
the right of asylum has been said to comprise certain specific manifestations of state conduct: (i)
to admit a person to its territory; (ii) to allow the person to sojourn there; (iii) to refrain from
expelling the person; (iv) to refrain from extraditing the person; and (v) to refrain from
prosecuting, punishing, or otherwise restricting the person's liberty.5

2.6 The Three Faces of the Right of Asylum

This paper discusses first the scope and legal stature of the three distinct "rights" falling under
the umbrella of the "right of asylum". These three faces are here at following.
The Right of a State to Grant Asylum
The right of a state to grant asylum is well established in international law. It follows from the
principle that every sovereign state is deemed to, have exclusive control over its territory and
hence over persons present in its territory. 6 Every sovereign state has the right to grant or deny

4
Sdr Law notes is Non-Profit Student Helpline (Editors: SRD & Group) available
http://www.srdlawnotes.com/2016/10/types-kinds-of-asylum.html> (Last Accessed on 10th April 2019)
5
Tom Clark, ‘Giving Content to the Concept of Asylum’, Human Rights and Expulsion, International Journal of
Refugee Law vol. IV, no. 2, 1992, p. 144
6
Felice Morgenstern, ‘The Right of Asylum’, Encyclopedia of the New American Nation, vol. IX, no. 8, p. 38

6
asylum to persons located within its boundaries. Traditionally, thus, in international law, the
right of asylum has been viewed as the right of a state, rather than the right of an individual. 7

The Right of an Individual to Seek Asylum

The second aspect of the right of asylum is the right of an individual to seek asylum. This is an
individual right that an asylum-seeker has vis-a-v vis-d-vis is his state of origin. 8 Essentially, it is
the right of an individual to leave his country of residence in pursuit of asylum. The basis for this
right is the principle that "a State may not claim to 'own' its nationals or residents."

The Right of an Individual to be granted Asylum

The third component right under the umbrella of the right of asylum is the right of an individual
to be granted asylum. This view has not yet been generally recognized under international law.
International and regional instruments dealing with human rights, asylum, and refugees, as well
as the failure of the international community to agree on a convention on territorial asylum
illustrate the general proposition that, in international law today, an individual has no right to
asylum enforceable vis-a-vis the state of refuge.
The British, Australian, and Saudi Arabian representatives objected to obliging states to grant
asylum. The general development started with the adoption of international instruments like
Universal Declaration of Human Rights, 1948. This declaration proclaims the right of an
individual "to seek and to enjoy in other countries asylum from persecution.” 9 Scholars agree that
this provision merely affords the individual a right to seek asylum, not a right to receive it.
International instruments adopted subsequent to the Declaration likewise do not provide for an
individual's right to be granted asylum. In preparing the International Covenant on Civil and
Political Rights, states had an opportunity to provide for the right to asylum. During discussions
on the draft Covenant at the Seventh Session of the United Nations Commission on Human
Rights, the Yugoslavian representative voiced a concern that the right to asylum was absent from
the draft. The Yugoslavian representative proposed an additional article to the Covenant,
providing for an individual's right of asylum. This proposal failed, however, because many
7
Guy S. Goodwin-Gill, the Refugee in International Law, 3rd ed. (Oxford: Oxford University Press, 1983), p.
134
8
Ibid p, 59
9
Article14(1) of The Universal Declaration of Human Rights, 1948

7
representatives did not consider the right of asylum to be an individual's fundamental right and
because there was disagreement as to the class of persons to whom asylum should be granted." 10
Consequently, the Covenant, as adopted, contains no provision relating to asylum. Thus, under it,
states have no obligation to grant asylum.11 Similarly, the International Covenant on Economic,
Social, and Cultural Rights is silent on a right to asylum. The principal international instruments
relating to the protection of refugees, the 1951 Convention relating to the Status of Refugees and
the 1967 Protocol relating to the Status of Refugees, also do not provide a right to be granted
asylum.12
During the drafting of the Refugee Convention, France and the United Nations Secretariat
submitted a proposed article providing for, “favorable consideration to the position of refugees
seeking asylum from persecution.” The Ad Hoc Committee on Stateless Persons and Related
Problems accepted this proposal for discussion, but decided not to include asylum provisions in
the operative part of the Refugee Convention. The United Nations High Commissioner for
Refugees explains in the Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees that, “the
granting of asylum is not dealt with in the 1951 Convention or the 1967 Protocol.”13
Similarly, regional instruments also provide provisions relating to asylum. African and American
regional instruments address asylum, but do so with great respect for state sovereignty and thus
without much direct benefit for the individual's right to asylum. The American Declaration of the
Rights and Duties of Man provides in Article 27, “Every person has the right, in case of pursuit
not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance
with the laws of each country and with international agreements.” 14 Similarly, the American
Convention on Human Rights provides at Article 22(7), “every person has the right to seek and
be granted asylum in a foreign territory, in accordance with the legislation of the state and
international conventions.”

10
Ibid,p. 325.
11
Alfred De Zayas, ‘Human Rights and Refugees, in Migration and Migration Policy’, Journal on International
Organization for Migration, vol. IX, no. 4, (August 2015), p.45.
12
Article 2 of Protocol relating to the Status of Refugees, 1967
13
Ibid,p. 236.
14
Article 27 of The American Declaration of the Rights and Duties of Man, 1948

8
Each of these instruments leaves the right of asylum in the realm of state sovereignty. Equally
silent with respect to the right to asylum is the European Convention on Human Rights.15

2.7 Conclusion:
Asylum is on kind of protection for the persons who are forcedly removed from his Country or
who feel that the living country is not safe for him; his life is under threat than he can go another
country where he wants to live and seek the status of asylum from the receiving country. It is the
right of a person given under the International Law.

15
Article 4European Convention on Human Rights, 1950