ASYLUM

Farjana Yesmin
Assistant Professor
Department of Law
University of Chittagong
What is Asylum?
Asylum means shelter and active protection extended
to a refugee from another state by a state which admits
him on request.
The concept of asylum in international law involves three
elements.
Firstly, the State admits the individual seeking refuge to its
territory or other places under its control.
Secondly, the State is prepared to provide a long-lasting
sanctuary i.e. its more than mere temporary refuge.
Thirdly, it involves a degree of active protection, i.e. the State
authorities are taking appropriate steps to ensure actual
protection of the particular individual.
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 stay 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
International Law regarding Asylum…
Universal Declaration of Human Rights ,1948 Article
14 "Everyone has a right to seek and enjoy in other
countries asylum from protection."
 The Declaration on territorial asylum 1967 (Article 1)
 1. Asylum granted by a State, in the exercise of its
sovereignty, to persons entitled to invoke article 14 of the
Universal Declaration of Human Rights, including persons
struggling against colonialism, shall be respected by all
other States.
 2. The right to seek and to 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 crime or a crime against
humanity
 3. It shall rest with the State granting asylum to evaluate
the grounds for the grant of asylum.
Three faces of the Right of Asylum
1. The Right of a State to Grant Asylum

2. The Right of an Individual to Seek Asylum

3. The Right of an Individual to be Granted Asylum

The Right of a State to Grant Asylum:
every sovereign state is deemed to ,have exclusive
control over its territory and hence over persons
present in its territory. A state may admit whoever it
chooses on whatever terms it desires.So, every
sovereign state has the right to grant or deny asylum to
persons located within its boundaries.
 i) The Universal Declaration of Human Rights (“UDHR”)
provides that “Everyone has the right to seek and to enjoy in
other countries asylum from persecution.”[ARTICLE 14]

ii) The Declaration on Territorial Asylum adopted by the

General Assembly of the United Nations in1967 provides in
Article 1(1) that, “ Asylum granted by a state………….shall be
respected by all other states”
Further ,Article 1(3) of this Declaration vests the state of
asylum to evaluate the grounds for grants of asylum.
Consistent with International instruments,regional
instruments evidence the right of a state to grant
asylum.
i) The Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems
in Africa
ii) The Convention on Territorial Asylum adopted by
the Organization of American States
2. The Right of an Individual to Seek Asylum: This is an
individual right that an asylum-seeker has against
his state of origin. It is the right of an individual to
leave his country of residence in pursuit of asylum.
Article 13(2) of the UDHR proclaims
that ,”Everyone has the right to leave any country,
including his own.”
Article 12(2) of the International Covenant on
Civil and Political Rights affirms this Right again.
Regional Instruments: i) European Convention for the
protection of Human Rights and Fundamental
Freedoms.

ii) American Convention on Human Right

3. The Right of an Individual to be Granted Asylum:
International and regional instruments dealing with
human rights, asylum, and refugees illustrate the general
proposition that an individual has no right to asylum
enforceable against the state of refuge.
Article 14(1) of the Universal Declaration of
Human Rights proclaims the right of an individual
"to seek and to enjoy in other countries asylum from
persecution." Scholars agree that this provision
merely affords the individual a right to seek asylum,
not a right to receive it.'
Kinds of ASYLUM?
i) Territorial Asylum
Ii) Extra-territorial Asylum
Territorial Asylum:
 granted by a state in its territory.
 protection of persons accused of political offences
such as treason, desertion, sedition, religious refugees.
this right has been associated with the right of
States to refuse extradition of individuals present in
their territory.
The right to grant territorial asylum can be derived also
from the fundamental principle that the State has an
exclusive right to exercise jurisdiction over individuals
present in its territory (excluding individuals having
jurisdictional immunity, e.g. diplomatic agents).
The United Nations General Assembly has affirmed
that the granting of asylum is a peaceful and
humanitarian act, a normal exercise of state
sovereignty, and that it should be respected by all other
states.

States granting asylum shall not permit persons

engaged in activities contrary to the purpose and
principles of the U.N.
The current legal regulation for territorial asylum is
found in the Convention relating to the Status of
Refugees (1951) and its supplementary protocol
(1967).
Extra-territorial Asylum:

Extraterritorial asylum means to give protection an

individual who is still in the territory of his/her own
country.

Extra-territorial asylum, therefore, granted by a state not

on its physical territory, but on its notional territory,
like in a diplomatic and consular premises and on
warships.
(i) Diplomatic Asylum : The granting of asylum in the
legation (building in which diplomats work) premises
is known as diplomatic asylum. It should be granted as
a temporary measure to individuals physically in
danger. It is an exceptional and controversial measure
because it withdraws the offender from the jurisdiction
of the territorial state.
Case: The Asylum Case (Columbia Vs. Peru,ICJ,1950)

Fact: Haya de la Torre was the leader of the Peruvian political

movement American People’s Revolutionary Alliance which
was constantly in troubles with the government. When his
movement revolted and lost a one day civil war on 3 October
1948, he sought refuge in the Columbian embassy. Columbia
recognised Haya de la Torre as a political offender, but Peru
refused to grant him safe passage to leave the country. To
settle their dispute, the States turned to the International Court
of Justice, giving the latter a great opportunity to clarify the
position of international law on diplomatic asylum.
The Court delivered a cautious judgment:
in Asylum case saying that
(1) diplomatic asylum as a serious derogation from
territorial sovereignty cannot be recognized unless its
legal basis is established in each particular case and
(2) when relying on customary international law, the
protective State must prove that it has a right to grant
diplomatic asylum and the territorial State has an
obligation to respect diplomatic asylum
Is diplomatic asylum recognised by international
law?
 No, the drafters of the 1961 Vienna Convention
refused to introduce diplomatic asylum in spite of a
strong request by Latin American countries.

 The International Court of Justice (ICJ) did not

recognise diplomatic asylum as legal concept
In the case of diplomatic asylum, the refugee is within
the territory of the State where the offence was
committed. A decision to grant diplomatic asylum
involves a derogation from the sovereignty of that
State. It withdraws the offender from the jurisdiction
of the territorial State and constitutes an intervention in
matters which are exclusively within the competence
of that State. This explains why States mostly reject
the right to diplomatic asylum. The International Court
of Justice has equally been cautious about diplomatic
asylum due to its dangerous and offensive interference
is the sovereignty of another State
While it is not globally accepted as a legal concept,
diplomatic asylum exists as regional law in Latin
America. It has been developed since the nineteenth
century with quite consistent practice and a high level
of observation regardless of political conflicts among
countries. The regional aspect of diplomatic asylum
can be seen in the list of countries that signed and
ratified the 1954 Caracas Convention on Diplomatic
Asylum. It is only signed/ratified by Latin American
countries, while other members of the Organisation of
American States are not party to the convention
(Caribbean countries, USA, and Canada).
How is Assange protected if diplomatic asylum is not
recognised in international law?
He is protected due to the inviolability of the Ecuadorian embassy, not
because of his diplomatic asylum. Inviolability of the premises is granted by
Article 22 of the VCDR
Diplomatic asylum matters when it comes to his move from the Embassy to
the foreign country. If diplomatic asylum was recognised by the UK, Assange
could have been provided with free passage from the Embassy in London to
Ecuador. For example, Article 12 of the 1954 Caracas Convention specifies
free passage:
Once diplomatic asylum has been granted, the state granting asylum may
request that the asylee be allowed to depart for foreign territory, and the
territorial state is under obligation to immediately grant the necessary
guarantees.
How to deal with diplomatic
asylum?
Since it is not legally regulated (except in Latin America),
diplomatic asylum has to be addressed ad hoc through
negotiations. Here are a few principles based on the Latin
American asylum practice and current literature that should be
used in deciding on diplomatic asylum
1.Diplomatic asylum should be granted to persons politically
prosecuted.
2.Diplomatic asylum should be granted in extraordinary situations
when human lives are at risk, such as anarchy, outbreak of civil
war.
3.There is also a humanitarian element. The life of the asylum
seeker should be endangered in order to receive asylum.
(ii) Asylum in the premises of International Institutions:
There is no general right or practice regarding granting asylum
in the premises of international institutions and of specialised
agencies, even on humanitarian grounds. But temporary refuge
in extreme cases cannot be ruled out. e,g Najibullah, former
president of Afghanistan sought refuge in UN headquarters in
Kabul, later he was killed by Taliban.

(iii) Asylum on Warships:

The warships and public vessels enjoy immunity under
international law and it has been claims that there exists a right
of asylum on ships. Asylum in merchant ships cannot be granted
because merchant vessels donot have immunity.