“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an article describing the concept of asylum in the Territorial and Extra-Territorial aspect.”
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“No one leaves home unless home is the mouth of a shark.”
— Warsan Shire
The quote by Warsan Shire depicts the harsh reality of how the persecution or its fear drives millions to leave their homes and seek asylums. As per the United Nations Human Rights Commission(UNHRC)’s 2018 data, 70.8 million people were forcibly displaced worldwide out of which 3.5 million were asylum-seekers.
Around 1 million asylum-seeking applications were filed in the first half of the year 2019. It is believed that the concept of asylum is as old as life on earth, and with developing years it has taken a structured meaning and implications.
This article describes the concept, types, needs, and other factors related to the concept of an Asylum and Asylum-seekers.
Asylum in International Law
It is pertinent to first understand the term ‘Asylum’. It has been derived from a Greek word whose Latin counterpart is ‘Asylon’ and it means ‘freedom from seizure’. There is no specific definition of Asylum but it can be understood as legal protection granted to the people who have fled their home countries due to warship, conflict, persecution, or fear of persecution. It is a possibility to remain in a country either permanently or for a temporary period. A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.
The process is that an individual has to apply for asylum in a particular country, while their application is pending they are made to stay in a detention camp. Once, the applications are accepted i.e. their claims are accepted, then these people get the status of a refugee and the rights that come along with it.
It is worth noting that there has been a continuous conflict on the question of whether the right to asylum is a right of an individual or of the state?
There are few declarations that provide the ‘Right to Asylum’ like the Universal Declaration of Human Rights(UHDR), the Vienna Declaration on Human Rights and Programme of Action and the Convention on Political Asylum which was concluded by the Seventh International Conference of American States in 1933.
Article 14 of the Universal Declaration of Human Rights provides the right to an individual to seek asylum in any country to protect them from persecution. Provided as per clause 2 of Article 14 that any individual who has a criminal record of anything which is not acceptable as per the principles of the United Nations, cannot seek asylum and in case of non-political reasons, the asylum can be denied. It is considered as the fundamental law. However, India is not a party to it.
Article 33(1) 1951 Refugee Convention prohibits the expulsion or return of refugees and asylum-seekers if their life or freedom is in danger based on their race, religion, membership of a social group, political opinion, or nationality.
New York Declaration for Refugees and Migrants by the UN General Assembly in 2016 also reaffirms the ‘right to seek asylum’ and freedom of an individual to leave or return to their country.
Article 18 of the Charter of Fundamental Rights of the European Union also provides that as per the rules of the Geneva Convention(28 July 1951) and 1967’s protocol, the right to Asylum is guaranteed.
In 1993, the Vienna Declaration and Programme of Action also reaffirmed the right to seek and enjoy asylum in other countries and the right to return to their own country.
However, the articulation of the law of the right to asylum signifies that it is not the right of an individual, but rather is a right of the state to grant asylum. It depends on the discretion of the State whether it grants the asylum or not. The decision of the state must be respected by all the other states. States have to take into account their economic status before granting asylum as it is the duty of the state to ensure its economic stability.
Various countries have provided the right to asylum in their Constitutions to the people who have fled from persecution, for example- Constitution of France, Article 10 of the Italian Constitution, Article 31 of Yugoslavia Constitution, etc.
‘Right to Asylum is a right to seek and not to receive.’
It is granted when the state provides asylum to asylee within its territory. The exclusive control of every sovereign state over its territory backs up the right of a state to grant territorial asylum. It is an exception to the extradition.
- If an individual, ‘A’ from Syria comes to Turkey and applies for asylum due to the horrifying condition in Syria and apprehension of danger to his life.
- If the individual is granted by the Turkey government within the country itself, it is an example of Territorial asylum.
In 1947, the topic was first raised by the Commission on Human Rights and later was incorporated in the UDHR under Article 14. Later in 1967, after a rigorous attempt, the General Assembly had passed a ‘Declaration on Territorial Asylum’ at its twenty-second session.
Article 1(1) of the Declaration on Territorial Asylum states that a state can grant asylum by exercising its sovereign power to an individual who invokes his/her right under Article 14 of UDHR. Article 1(2) provides that if an individual that has a record of crime against humanity, peace, or a war crime cannot seek asylum in another country. Article 1(3) provides the power to the state to evaluate based.
Article 2 provides that if any state feels overburdened in providing asylum to the people then States shall either individually or through the United Nations help that particular to lighten the burden.
Article 3(1) provides safety to the individuals and assures that once they are provided asylum in a country they cannot be expelled or forced to return to a place where they might be persecuted. Article 3(2) and 3(3) act as exceptions to Article 3(1). Article 3(2) provides that a State can expel or force to return the person to protect the national security of the state and Article(3) provides that if the State feels justified to send away an individual then it shall give the opportunity to allow it to go to another state. Article 31, 32, and 33 of the Refugee Convention of 1951 support the said principle.
An individual must not be provided Asylum to engage in activities that are contrary to principles of the United Nations, this is provided in Article 4 of the declaration.
In case of an extradition treaty between two countries, the countries are bound to extradite the offender in terms of the other country’s law. In Territorial Asylum, the state has the power to impose restrictions on asylum-seekers’ movement, etc.
Some famous examples of this type of asylum include:
- The asylum that was given by India to Dalai Lama and his followers in India in 1955 as those people were facing atrocities for a long time in China.
- Salman Rushdie, a writer who was in controversy for his novel ‘Satanic Verses’ was given Asylum by the United Kingdom.
It is granted when the state provides asylum outside the territory of its state, such as in warships, legation consular premises, international headquarters, or its Embassy situated in a different country i.e. one of its public places situated/ lying in foreign territorial borders. The term extra-territorial means beyond the jurisdiction of the authorities of the state where such establishment is i.e. the local authorities. The immunity is granted to the diplomats and other officials to protect their country’s interests. The local authorities are not allowed to enter the Embassy of any country situated in their country without having special orders.
- If ‘A’ from Syria approaches the US Embassy in Syria for grant of Asylum due to imminent danger to his life.
- If the US Embassy grants the Asylum, it becomes an example of Extra-Territorial Asylum.
Earlier the practice of extra-territorial asylum was often exercised but with the development of time, it has been restricted to only in urgent cases, once it is assured that the local government cannot keep the asylum-seeker safe. It is granted on a temporary basis and ends once the emergency is over. The reason being that it is seen as a derogation of the sovereign power of the state over its territory. Providing asylum in such cases, to an extent deprive the local country’s jurisdiction over all the individuals present on its territory. There have been instances of people misuse of the right to seek asylum by hiding people who have committed political crimes.
The Convention on Asylum held in Havana in 1928 to which only a very few countries have ratified, provides that it is not allowed for states to grant asylum to people who are accused of common crimes or deserters from the navy or army in their legations, military camps, warships or military aircraft.
There are the following types of extra-territorial asylum:
Asylum in Diplomatic Asylum
It is granted when the state provides asylum in the Embassies, foreign legations, and consular premises(premises of a consul-an individual who heads a particular mission in that local country). It has not been recognized as a right because it is often believed that it interferes with the sovereign power of the host country over its territory. Normally, the right to asylum, it is not recognized in International law but asylum can be granted in the following exceptions:
- If individuals are in physical danger due to violence.
- In case of a binding local custom.
- In case of a special treaty between the State of Legation concern and the territorial State.
The two reasons for not recognizing it are: firstly, it violates the territorial sovereignty of the state; and secondly it is the violation of diplomatic or consular immunity. The receiving party cannot enter the foreign legations and consular premises without the consent of the mission head.
In Latin America ‘right to seek extra-territorial asylum’ is recognized not as an International law but as a local law due to increased violence and government instability. Britain does not recognize the right to asylum in diplomatic or consular premises or ships but it has granted asylum in cases of emergency on humanitarian grounds. Similarly, other countries also do not recognize it as an International law but provide it in case of an emergency.
In fact, India also does not recognize such rights but exceptions have been seen. For instance, Aziz Olough Zade, a Soviet defector was granted asylum in the USA embassy in India after which foreign missions were urged to respect the International practice and not grant asylum unless urgent.
A remarkable example is an asylum provided by the USA to the Hungarian Roman Catholic Jozsef Cardinal Mindszenty who was unsuccessful against Hungary’s communist government in 1956. He was later provided with the refugee title and he stayed for 15 years in the USA.
Like various countries, the US and Cuba entered into a consular convention in 1926 whose Article VIII provides that a Consular officer will have to hand over the individual to whom asylum has been provided in the consular office.
Asylum in the premises of the International Institution
There is no general right to grant asylum in International institutions. In terms of International law, there is no recognition of such a rule. International institutions include the United Nations Organization (UNO), the World Trade Organization (WTO), etc. The absence of any agreements of the United Nations or other agencies in this regard has kept the answer to this inconspicuous.
However, looking closely at the laws and precedents it can be concluded that in the premises of International institutions one cannot be granted asylum. However, every case might be considered based on a humanitarian basis.
Asylum in Warship
The situation in this aspect is very uncertain as there are no specific guidelines regarding this. However, the laws are similar to those of asylum in legations, consular premises, and embassies. When a warship is in the territorial water body of another state then the coastal state only has the power to require the ship to leave their territorial waters and do nothing else.
The Havana Convention on Asylum’s Article 1 provides that people who are accused of common crimes and not political crimes if taking refuge under a warship, military camps, or aircraft or legations shall be handed over to the local government on request.
Article 2 of the Convention provides that asylum at such places be provided only in urgent cases. Once the asylum is granted the foreign minister of the asylee’s country should be informed to ensure his/her safety. The convention basically permits the grant of asylum to political offenders.
Certain countries like the USA and UK accept the practice to grant asylum on warships on humanitarian grounds for a temporary time.
A significant example of this was the conflict between Argentina and Paraguay. In 1911, revolution broke out in Paraguay due to which various revolutionaries sought refuge on the Argentine vessels. This led to conflict between the two counties as Paraguay contended that the asylum-seekers were not political refugees rather were common criminals or deserters. The incident led to the breaking of ties between the two countries.
Asylum in Merchant Vessels
Merchant vessels include the commercial ships, the territory in which they are the law of that country is binding upon them. They do not exercise or enjoy immunity similar to warships. For instance, if an individual commits a crime and then asks the merchant vessel of the UK which is in the water body of France, to grant him asylum. In such a case the French government can assert the individual either before leaving the port of France or when it reaches another port of France. Asylum can be granted if there is a treaty between the two Nations.
The laws of maritime state that if the asylum-seeker is in life-threatening trouble and facing serious persecution then he/she will be allowed the asylum. In 2013 a British merchant ship on the wharf of Christmas Island rescued around 78 asylum seekers from a stricken vessel.
To conclude, asylum is granted in consulates, embassies, legations, warships, merchant vessels, and not just to political offenders but also in certain cases to common criminals. The purpose behind it is to save human beings from persecution, retribution.
Benefits of asylum
Leaving your home and moving to a different country without having any certainty about future settings is the biggest challenge humans can face in their lives. It provides protection to the people who had been forced to leave their home countries. It provides freedom from torture or degrading treatment. They are imbibed with the right to freedom of opinion and expression.
It is basically granted to save the lives of people from the local authorities’ jurisdiction when the person fears that he/she might not be provided with a fair trial and if he/she stays any longer in that place will have to face persecution either physical, mental or economic.
Humanity shall always prevail, a quote that every country tries to abide by. The benefit of asylum is that it protects the individual from being forced to return to their home country. Their families stay protected at a place where they no longer have to worry about their lives.
Despite some restrictions which may be imposed by the host country, one can be allowed to work and earn. Once the asylum seekers get the title of refugees, they are provided with the same rights subject to exceptions like political rights and respect as that given to a citizen of that country. Some might even obtain the citizenship of the country where they have been granted asylum. Some can also opt for the resettlement option in case of strong reasons.
To conclude it provides a new shot at life to the traumatized group of people.
Role of Nationality in the Asylum
The 1951 Refugee Convention contains the provision that no individual can be discriminated against on the basis of race, religion, or country of origin. However, when the State is deciding upon the question of whether one should be granted asylum or not, various factors are considered. The individual after submitting the application is interviewed to gather all the information regarding his/her background, the reason for pleading for asylum, etc. the state often considers the nationality, background of an individual to decide whether the person is in actual need or not.
For instance, a person who belongs from Syria or South Sudan gives the reason that they fear persecution and imminent danger to their lives due to the ongoing unsettlement among middle east countries shows the genuineness of the reason for leaving their home country.
It is not a sign of arbitrary discrimination rather it is seen whether the people of a particular nationality or belonging to a linguistic group are facing persecution in their home country, this question helps the host state to conclude the application process.
Difference between Asylum and Extradition
These two terms are extreme poles of each other i.e. totally opposite to each other. Asylum is providing protection and a safe place by the host country to all those who have been exposed to risk and persecution and therefore have left their home countries. On the other hand, extradition is the process of sending back a fugitive by one country to another, the main purpose is to criminally prosecute the fugitive. It is a process that takes place only when the two countries involved have a certain ad hoc agreement or bilateral treaty regarding it.
Extradition is the process to make sure that the fugitives are punished and justice is served and criminal cooperation is strengthened between sovereign states. Whereas, asylum is to provide safety and freedom from torture and a chance to live a peaceful life. If Asylum has been granted to the person then the court of law will not hear the expedition case and similarly, if a case of the expedition is pending against an individual, he/she would not be granted asylum.
If a country wants to request the extradition of an individual, it needs to ensure that the request made is in compliance with Article 33 of the 1951 Geneva Convention which deals with the International law’s principle of non-refoulement. It is decided by the court whether the person should be extradited or not. Whereas, the executive decides whether an individual should be granted asylum in their country or not based on factors like practical and political possibilities and grounds.
Famous cases of Asylum
Assange v. The Swedish Prosecution Authority
The recent case that has captured a lot of media attention is of Julian Assange. He is an Australian editor, publisher, and founder of WikiLeaks who was accused of a rape case and a molestation case by the Sweden government. The Sweden government had filed for the extradition of Assange and the UK Supreme Court had ordered for his extradition to Sweden in May 2012. In June 2012, he was granted asylum in England at the Embassy of Ecuador.
The reason was given that his human rights would be violated if he is sent to Sweden. In 2015 Sweden dropped the charges against Assange. In February 2012, the UN declared that he had been ‘arbitrarily detained’ by the Ecuador embassy. In May 2019 he was sentenced for 50 weeks jail for breaching bail conditions.
He has also been accused of committing a crime against the United States of America by releasing the confidential documents of the United States of America on his website named ‘WikiLeaks’. The USA has been trying to extradite him to their country.
Colombia v. Peru 1950
It is a landmark case that has described in detail the law on diplomatic asylum.
A national of Peru who was a political leader named Victor Raul Haya de la Torre, he was accused of instigating a military rebellion. He was granted asylum by the Colombian embassy at Limo. However, he was not allowed to leave the country. The dispute arose between Peru and Colombia and the matter was then referred to the International Court of Justice. The main question raised was regarding the right to grant diplomatic asylum.
The court carefully observed that:
- Diplomatic asylum is the derogation of territorial sovereignty and it should not be recognized unless in each case a legal basis is established.
- The state providing such a grant must prove that it has the right to grant diplomatic asylum and it should be respected by the territorial State.
The Court also observed that there is no international treaty related to Diplomatic Asylum, only Latin American and Central American countries have such rights. Diplomatic Asylum is defined as the asylum provided to people who are political offenders and fear that if they are prosecuted, they will have to face an unfair trial and therefore want to escape the persecution. The Court held that it is a settled fact that common criminals cannot be granted asylum.
In 1997, in the case of A and Another v. Minister for Immigration & Ethnic Affairs Chinese nationals asked for asylum in Australia and claimed that they fear prosecution because they are expecting a second child which might land them in trouble. The reason being that China has adopted the one-child policy and the fear arose that they would be subjected to sterilization as the community from which they belonged had only one child and whosoever surpassed the limitation was forced or coerced to undergo sterilization. The Court of Australia did not accept it to be a sufficient ground of persecution. Whereas, the US Congress has recognized that forced sterilization amounts to and is enough to be considered as a ground for persecution.
In India, there is no specific law related to asylum-seekers. They are categorized as ‘foreigners’ under various acts like Registration of Foreigners Act,1939, Foreigners Order, 1948, Passport Act,1920 and The Foreigners Act, 1946. India is not even a party to the Universal Declaration of Human Rights(UDHR). Still, India has provided asylum in certain cases, the main one being the asylum provided to Dalai Lama and his followers in 1955 despite being highly criticized by the China government. India had the power to do so by exercising its sovereign power.
Asylum is a very crucial part of International law. Now more than ever, when the middle-east countries are under turmoil, with increasing wars among countries, CAA-NRC debate in India, etc. It has become necessary to ensure the proper implementation of the right to grant asylum with prudence and forethought. There is still a need to remove the layer of obscurity over the Diplomatic Asylum concept. Various countries including India need to have a clear Asylum law in their countries. As the principle that every country needs to abide by is the principle of humanity.
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