Table of content
Introduction.............................................................................................................. (1)
Meaning and Definition............................................................................... (3)
Right to Asylum ………….......................... (4)
Asylum may be classified into two categories................................................ (5)
a. Territorial …………………………………………………… …..(5)
b. Extra-territorial ……………………………………………… (10)
The international protection of Refugees......................................................... (7)
Example of Dalai Lama and his Tibetan followers ………................... (9)
Example of the influx of Refugees from Bangladesh................................... (9)
Extra-territorial or Diplomatic Asylum ……………………............................. (10)
Conclusion........................................................................................................ (13)
Introduction
Right of asylum or political asylum, Greek is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or Church sanctuaries (as in medieval times). Political asylum should not be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis. However, the two may somehow overlap, since each refugee may demand to be accorded on an individual basis political asylum. This right has its roots in a longstanding Western tradition—although it was already recognized by the Egyptians, the Greeks and the Hebrews—Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc; each state offered protection to foreign persecuted persons. Many ancient peoples, including the Egyptians, the Greeks, and the Hebrews, recognized a religious "right of asylum," protecting criminals (or those accused of crime) from legal action to some extent. This principle was later adopted by the established Christian church, and various rules developed to qualify for protection and just how much protection it was.
According to the Council of Orleans in 511, in the presence of Clovis I, asylum was granted to anyone who took refuge in a church, in its dependences or in the house of a bishop. This protection was given to murderers, thieves or people accused of adultery. It also concerned the fugitive slave, who would however be handed back to his owner if this one swore on the Bible not to be cruel. This Christian right of asylum was confirmed by all following councils.
In England, King Ethelbert made the first laws regulating sanctuary in about 600 A.D. By the Norman era after 1066, there had evolved two kinds of sanctuary: all churches had the lower-level kind (sanctuary within the church proper), but only churches licensed by the king had a broader version (sanctuary in a zone surrounding the church). There were at least twenty-two churches with charters for a broader kind of sanctuary, including Battle Abbey, Beverley (see image, right), Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester Cathedral, Westminster Abbey, and York Minster.
Sometimes the criminal had to get to the church itself to be protected, and might have to ring a certain bell there, or hold a certain ring or door-knocker, or sit on a certain chair ("firth-stool"), and some of these items survive at various churches. In other places, there was an area around the church or abbey, sometimes extending as much as a mile and a half, and there would be stone "sanctuary crosses" marking the boundary of the area; some of those still exist as well. Thus it could become a race between the felon and medieval law officers to the nearest sanctuary boundary, and could make the serving of justice upon the fleet of foot a difficult proposition.
Church sanctuaries were regulated by common law. An asylum seeker was to confess sins, surrender weapons, and be placed under the supervision of the head of the church or abbey where they had fled. They then had forty days to make one of two choices: surrender to secular authorities and stand trial for the alleged crimes, or confess their guilt and be sent into exile (abjure the realm), by the shortest route and never return without the king's permission. Anyone who did come back could be executed by the law and/or excommunicated by the Church.
If the suspect chose to confess their guilt and abjure, they would do so in a public ceremony, usually at the gate of the church grounds. They would surrender their possessions to the church, and any landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of protection under the church. Theoretically they would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitive never reached their intended port of call, becoming a victim of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape." Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made. Henry VIII changed the rules of asylum, reducing to a short list the types of crimes which were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James I in 1623. During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England: In 1470, when the Lancastrians briefly restored Henry VI to the throne, Queen Elizabeth was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward IV was restored to the throne in 1471 and giving birth to their first son Edward V during that time. When King Edward IV died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.
Meaning and Definition: By asylum we mean shelter and active protection extended to a political refugee from another state by a state which admits him on his request.
Asylum involves following two elements
(1) A shelter which is more that a temporary refuge and
(2) A degree of active protection on the part of the authorities which have control over the territory of asylum[1].
The institute of international law has defined asylum as “the protection which a state grants on its territory or in some of her place under the control of certain it s organs to a person who comes to seek it”.
An institution for the protection or relief of some class of destitute, unfortunate, or afflicted persons; as, an asylum for the aged, for the blind, or for the insane; a lunatic asylum; an orphan asylum
Right to Asylum: According to Article 14 of the Universal Declaration of Human Rights: "everyone has a right to seek and enjoy in other countries asylum from prosecution ". It may however, be noted that the declaration simply recognizes the right of asylum, it does not grant right to receive asylum. “The so-called right of asylum is probably nothing but the competence of every state to allow a prosecuted alien to enter and to remain on, its territory under its protection. Such fugitive alien enjoys the hospitality of the state which grants him asylum; but it might be necessary to place him under surveillance, or even to intern him at some place to make his entry subject to condition. For it is the duty of every state to prevent individuals living on its territory from endangering the safety of another state by organizing hostile expeditions or by preparing common crimes against its head, members of its Government or its property.[2]
In 1967, united national declaration on territorial Asylum was unanimously adopted by the General Assembly, among its most important provisions, it called on Governments to refrain from measures such as rejection at the frontier of persons seeking asylum. Being a s declaration, it lacked binding force, and it was considered necessary to strengthen the legal basis for granting asylum by means of a convention. With this aim in view the United Nations conference of plenipotentiaries on Territorial Asylum was held in Geneva from 10th January to 4th February, 1977. It recommended in its report that the General Assembly in 1977 consider reconvening a further session of the conference at the appropriate time. The draft text, which was before the conference prepared by the legal experts also intended to reinforce to some extend Article 14 of the 1948 Universal Declaration of Human Rights but makes no mention of any obligation by states to grant asylum. Thus although everyone has a right to seek asylum yet there is no corresponding duty of states to grant asylum. “The only international legal right involved is that of the state of refuge itself to grant asylum”.
Types of Asylum and distinction between Territorial and Extra-territorial Asylum-
Asylum may be classified into two categories
(1) Territorial
(2) Extra-territorial
In the asylum case (Colombia V. Perus)[3] the international court of justice explained the distinction between territorial asylum and diplomatic asylum in the following words: “in the case of Extradition (territorial asylum), the refugee is within the territory of the state of refuge. Secession with regard to extradition implies only the normal exercise of territorial sovereignty. The refugee is outside the territory of the state where the offence was committed, and a decision to grant him asylum in no way derogated from the sovereignty of that states. 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 form the sovereignty of that states. It withdraws the offender from the jurisdiction of the territorial state and constitutes and intervention in matters which are exclusively within the competence of that state. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in such particular case. The differences between the principles applying to the two kinds of asylum flow from the fact that the power to grant territorial asylum is an incident of territorial sovereignty itself, whereas the granting of extra-territorial asylum is rather a derogation from the sovereignty of the territorial asylum unless it has accepted some particular restriction in this regard, while the right to grant extra-territorial asylum is exceptional and must be established in each case.
Territorial Asylum---territorial asylum is granted by a state in its own territory and is considered as an attribute of the territorial sovereignty of the state. On 28th march, 1945, a convention on Territorial asylum was adopted at Caracas. Article 1 of the said convention provided, “every state has right in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable without, through the exercise of the right, giving rise to complaint by any other state. “besides this, Article 1 of the Draft Declaration of Asylum as adopted by the united nations human right commission, provided: “Asylum granted by a state in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the said Draft Declaration of Human rights, shall be respected by all other states. “Article 3 of the said Draft Declaration further provided, “No one seeking or enjoying asylum in accordance with the Universal Declaration of Human Rights, should except for overriding reason of the population, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is well founded fear of prosecution endangering his life, physical integrity or liberty in that territory…” Article 31, 32 and 33 of the refugee convention of 1951 have incorporated the above principle.
In its resolution of 14th December, 1967 the General Assembly of the United nations recommended that in practice the states should do the following
(A) When a person request for asylum, his request should not be rejected or if he enters the territory of such state, he should not be expelled but when a large number of people request for asylum, it may be rejected on the basis of the national security of its own people.
(B) If any state feels difficulty in granting asylum, it should consider the appropriate measures with the feeling of international unity through the medium of individual states or the united Nations
(C) When a state granting asylum to the fugitives, other states should respect it
A state is free to grant asylum to the people of other states but this freedom can be restricted or regulated through treaties.
Reference to be made here to the United Nations conference of plenipotentiaries on territorial Asylum which was held at Geneva from 10th January to 4th February, 1977. The conference, which was attended by 92 countries, held its session in accordance with General Assembly resolution 3456 of 9th December, 1975 for the purpose of considering and adopting a convention on territorial Asylum. However, it did not reach a consensus on the matter. The conference recommended for holding one more session at the appropriate time. The conference was the culmination of more than five years of preparatory work. In April 1971, a group of independent legal experts meeting in Belligio, Italy, under the auspices of the Carnegie endowment for international peace, in consultation with the United Nations High Commissioner for Refugees, began draft convention on Territorial Asylum and concluded its work in Geneva in January of 1972.
The international protection of Refugees--- the instruments for the international protection of refugees are the 1951 U. N Convention Relating to the status of refugees and its 1967 protocol. The convention on the status of refugees, 1951 entered into force on April 22, 1954. So far the convention has been signed by 147 countries. It may be noted that India is not a party to this convention. Protocol relating to the status of refugees entered into force on October 4, 1967. So far 138 states have ratified this protocol. Besides these, there is U.N, High commissioner for Refugees and to provide them material assistance. The convention is based on two principles
(A) Non discrimination, as far as possible between national and refugees;
(B) No discrimination based on race, religion, or country or origin amongst refugees. It may be noted here that Article 31 of the 1951 U.N refugee convention exempts refugees directly from a country of prosecution from punishment on account of their illegal entry or presence provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. Further the contracting states parties shall not apply to the movement of such refugees’ restrictions other than those which are necessary and that nay restriction shall only be applied until their status is regularized or they obtain admission into another country. According to Article 2 of the convention refugees should respect the laws and regulations of their host country and refrain from to the principle of non-refoulement incorporated in the convention. This principle is fundamental to the entire structure of international action in favor of refugees. The observance of this principle is closely related to the determination of refugee status. The corollary to the principle of non-refoulement is that the repatriation of refugees must be voluntary.
It may be noted that until 1967, the convention applied to persons who had become refugees before January 1, 1951. Under its protocol adopted in 1967 which came into force on October 4, 1967, new groups of refugees are afforded the same protection. The 1967 Protocol which has widened the scope defines a refugee as someone who is outside his or her former house owing to a well-founded fear of persecution “because of reasons of race, religion, and nationality, membership in a particular social group or political opinion” so far the protocol has been signed by 147 countries.
In it’s noted on international protection of Refugees, the U.N High Commission on Refugees highlighted the problems faced by refugees. There are problems in regard to admission of refugees and to the standards of treatment accorded to them. States have a tendency to view asylum and the refugee concept in a restrictive manner and to resort to jarsj conditions, in addition, there is intractable problem of violations of the physical safety of refugees through armed attacks on refugee camps and settlements, forced conscription, piracy attacks on the failure of passing ships to rescue asylum-seekers in distress on high seas.
A UNHCR Panel in Geneva on, 11 April, 1984 expressed concern about xenophobic attitudes towards refugees and appealed to the public the media and governments to combat xenophobic trends and to treat refugees according to recognized humanitarian standards. Last but not least, since 1985, UNHCR has launched the U.N Campaign to break down mounting barriers erected against the tide of refugees worldwide and to treat refugees as assets.
The U.N high commissioner for refugees (UNHCR) protects and supports refugees at the request of a government or U.N and assists in their return or resettlement. The UNHCR was awarded the Nobel peace for 1954 and 1981. This agency is mandated to coordinate international action to protect refugees and resolve their problem worldwide, it strives to ensure that everyone can exercise the right to seek asylum and find refuge in a another state with the option to return home voluntarily, integrate locally or to resettle in a third country their lives. UNHCR has a staff about 5000 people in more than 120 countries to help 20 million people.
Rudd Lubbere became High Commissioner on January 1, 2001 replacing Sadako Oqata (1999-2000). But Rudd Lubbere was accused of sexual harassment. He had to resign from his office which was trying to shore up its image, following series of scandals. He has to resign two days after he had assured that he would complete his full term.
Example of Dalai Lama and his Tibetan followers---being oppressed from the repressive political of china, Dalai Lama and some of his followers fled away from Tibet and sought political refuge in India. India granted asylum to Dalai Lama and his followers. It was an indication of territorial sovereignty of India. China made a great hue and cry over it and alleged that India was interfering in the internal affairs of China. But as a matter of fact and in accordance with the principles of territorial asylum, India as a sovereign state, was within her right to grant asylum to Dalai Lama and his followers. “ a state being at liberty to do whatever it chooses within its own territorial, without reference to the wishes of other states, so long as its acts are not directly injurious to them, it has the right of receiving and giving hospitality of asylum to emigrants or refugees, whether or not the former have violated the laws of their country in leaving it and whether the latter are accused of political or of ordinary crimes.
Example of the influx of Refugees from Bangladesh---the repressive policies followed by the military regime of General Yahiya khan and the deliberate and calculated genocide committed by the military personnel o Pakistan forced millions of refugees to seek political refuge in India. India not only liberty granted political refuge to these oppressed people but also fed them and set the example of providing hospitality which is unprecedented in the annals of the world. It was in keeping with Article 1 and 3 of the Draft Declaration on Asylum adopted by human rights commission as referred earlier. Moreover, it was in accordance with Articles 31, 32 and 33 of the refugee convention of 1951. If India had not granted refuge to the said refugees, their return or expulsion would have resulted in compelling them. “To return to or remain in a territory where there was well founded fear of prosecution endangering their lives or physical integrity”. Thus the action of India in granting political refuge to millions of Bangalee refugees from erstwhile East Pakistan (now Bangladesh) was not only commendable on moral grounds bit also in keeping with the norms and principles of international law. India’s action was also in accordance with universal declaration of human rights, 1948. Article 14 (1) of the declaration provides that everyone has the right to seek and enjoy in other countries asylum from persecution genuinely arising from prosecutions, Article 14 (2) further provides that this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the united nations. Obviously in case influx of refugees from Bangladesh, Article 14 (2) does not apply. The influx of refugees from Bangladesh was due to political crimes and the refugees concerned were not guilty of violating the purpose and principles of the United Nations. Rather, the military regime of Pakistan was guilty of violating the purpose and principles of United Nations.
Extra-territorial or Diplomatic Asylum------extra-territorial asylum is granted by the state outside its territory, e.g., its embassy or public vessels. Extra-territorial asylum may be classified and discussed under the following heads:-
(A) Asylum in foreign Embassies___ international law does not recognize a general right of a head of mission to grant asylum in the premises of the legation for the obvious reason that such a step would prevent territorial law taking its own course and would involve a derogation from the sovereignty of the state where the legislation or mission is situated. In the Asylum case the international court of justice observed, “A decision to grant diplomatic asylum involves 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 with in the competence of that state. Such derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case. The facts of the asylum (Colombia V. Peru) care are as followers:
A political leader named victor Raul Haya Della torre was accused of having instigated a military rebellion. He was a Peruvian national and was granted asylum in the Colombian Embassy at Lima on 3 January 1949. The granting of the said asylum was subject of a dispute between Peru and Colombia. Both the parties agreed to refer the case to the international court of justice. According to pan American Havana convention on Asylum (1928), subject to certain conditions, asylum could be granted in a foreign embassy to a political offender who was a national of the territorial state. The question in dispute was whether Colomia, as the state granting the asylum, was entitled unilaterally to “qualify” the offence committed by the refugee in a manner binding on the territorial state that is to decide whether it was a political offence or a common crime. The court was also asked to decide whether the territorial state was bound to afford the necessary guarantee to enable the refugee to leave the country in safety. In its judgment of 20 November 1950, the court answered both these questions in the negative, but at the same time specified that Peru had not proved that Haya de la torre was a common criminal. Lastly, the court found in favor of a counter claim submitted by Peru that Haya de la torre had been granted asylum in violation of the Havana convention. On the day on which the court delivered this judgment, Colombia filled a request for interpretation, seeking a reply to the question whether the judgment implied an obligation to surrender the refugee to the Peruvian authorities. In a judgment delivered on 27 November, 1950, the court declared the request inadmissible.
Illustration
A national of country X on a visit to India was given asylum in his embassy by the ambassador of country Y in India. He was secretly sent away by plane to country Y.
As noted above, international law does not recognize a general right of states to grant asylum in foreign legations. Asylum may, however, be given under exceptional circumstances. In the present, none of the exceptions mentioned above applies, therefore the conduct of ambassador of country Y in secretly sending the national of country X to country Y is not proper because it involved derogation of the sovereignty of India. India can make a diplomatic protest. But no other remedy is available to India. Y is under no obligation to return the national of country X to India.
(B) Asylums in consular premises----the general principles relating to legation premises are also applicable to the grant of asylum in consular premises.
(C) Asylum in the premises of international institute ----international law does not recognize any rule regarding the grant of asylum in the premises of international institutions. Temporary asylum may, however, be granted in case of danger of imminent violence. There are no general right to international institutions “to grant asylum or even refuse asylum in their premises to offenders as against the territorial state, and simple not even a right of protection on humanitarian grounds. It is difficult to conceive, however, that a right to grant temporary refuge in an extreme case of danger from mob rule would not be asserted or conceded.
(D) Asylum in war ships--- some writers are of the view that the individuals, to being the members of the crew, who board the vessel to take refuge after committing a crime on shore, cannot be arrested by the local authorities and removed from the vessel in case the commander of the ship refuses to hand over the fugitive. On the other hand some other writers have expressed the view that such fugitive. On other hand some local police, even such writers, however, concede that asylum may be granted only on humanitarian grounds in case where there is extreme danger to the life of the individuals seeking asylum. Asylum may also be granted to political offenders. In this connection, Fenwick has pertinently remarked: “while asylum is no longer granted to ordinary criminals, it is still granted quite frequently to political refugees. Reference may also be made here of a convention adopted at the sixth international conference of American states held at Havana in 1928 which forbids the grant of asylum on war ships to persons accused of or condemned for crime. The convention, however, lays down certain conditions under which asylum may be granted to political offenders.
(E) Asylum in Merchant Vessels—Merchant vessels do not enjoy immunity from the local jurisdiction and consequently asylum cannot be granted to local offenders in merchant vessels.
Asylum and Extradition are mutually exclusive or asylum stops, as it were, where Extradition begins—as noted earlier, asylum is the protection which a state grants in its territory or in some of her place under control of certain of its organs to a person who comes to seek it. On the other hand, extradition is the surrender or delivery of the fugitive criminal to the state on whose territory he is alleged to have committed crime, by the state on whose territory of the territorial state and hence under its jurisdiction. By granting asylum, it grants protection to the person concerned in it s territory. In case of diplomatic asylum protection is granted to the person concerned and he is brought under the jurisdiction of the granting state. It, therefore, involves derogation from the sovereignty of the territorial state or through the institution of asylum the person concerned is withdrawn from the jurisdiction of the territorial states.
In both types of asylum, however, the ultimate purpose is to accord protection to the refugee or person concerned and to bring him under the jurisdiction of the granting state. The institution of extradition does just the reverse. In case of extradition the fugitive criminal is in the territory and under the jurisdiction of the territorial state and either under and extradition treaty (or arrangement) or otherwise, it surrenders or returns the fugitive criminal to the state where he is alleged to have committed crime. Thus the fugitive criminal which is under the jurisdiction of the territorial state is transferred to the extradition are mutually exclusive. Once the territorial state decided to extradite the fugitive criminal, the question of asylum does not at all arise, that is to say, asylum stops where extradition begins. On the other hand once the state concerned decides to grant asylum to a person the question of his extradition at least for the time being does not at all arise. But after a state has granted asylum to a refugee or fugitive criminal it may subsequently decide to extradite him at the request of the state where he is alleged to have committed the crime or to which state he belongs.
Conclusion
To conclude in the words of Starke, “The liberty of state to accord asylum to a person overlaps to certain extent which is its liberty to refuse extradition or rendition of him at the request of some other state, an overlapping best seen in the grant, commonly, of asylum to political offenders, who correspondingly are not as a rule extraditable. Asylum stops, as it were, where extradition or rendition begins and this interdependence makes it convenient to consider the tow subject together”.
Bibliography
1. International law and Human Rights, By Dr. S.K. Kapoor, 17th Edition, central Law Agency , ALLAHABAD,2009
2. International law: a treatise, Volume 2, International Law: A Treatise, Lassa Oppenheim , Lassa Oppenheim, Ronald Francis Roxburgh , Editor Ronald Francis Roxburgh , Edition 3, Publisher Longmans, Green and co., 1921
3. The elements of international law: with an account of its origin, sources and historical development , George Breckenridge Davis ,Publisher Harper & Brothers, 1900, International law study’s Author Naval War College (U.S.) , Publisher U.S. G.P.O., 1905
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