Right to Asylum and Kinds of Asylum
“Asylum stops, as it were, where extradition begins”
The phrase asylum is of Latin origin, derived from the Greek word- ASYLIA, which means inviolable place i.e. a safe place or a non-violent place. This word actually refers to the act of providing protection or shelter to a person of requesting state in its territory and not surrendering such a person to them.
It is just the opposite of Extradition, where its 2 most important elements are- shelter and active protection, which were exemplified by Starke.
In September of 1950, the Institute of International law has defined the term asylum at the bath session that- “it is the protection which a state grants on its territory or in some other places under the control of certain its organs to a person who comes to seek”.
This term can be taken to determine different legal factors i.e. admission and protection of refugees by a grant of the state against the apprehension of prosecution and extradition of political or financial offenders.
Also, the Universal Human Rights Declaration in its Article 14 said that- “Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the United Nations”. It was adopted by the General Assembly of the United Nations on December 10 in 1948.
The Basis of Asylum
Any state or country can grant asylum to any individual found in its territory as it has sovereign rights and control over its territory. This is the main principle behind the territorial type of asylum provided to an individual or refugee. This is an exclusive right of the state as any other doesn’t possess the jurisdiction or control over that territory. This is recognised under Article 1 of the draft of the convention on territorial asylum, which the General Assembly conferred in 1974. This right of territorial jurisdiction is extended up to embassies, legations, vessels and aircraft.
The reasons for providing Asylum
A state may have the right to grant an individual asylum for the below reasons
- It can be granted on the basis that if it’s seen that he will not get a fair trial, then such a person will be protected from the local authorities.
- An individual can be provided Asylum on the basis of humanitarian gestures or grounds. It can be like protecting a political offender from the violent and disorderly action of an irresponsible section of the population.
- Based on the importance of National security also the protection can be provided. Like for e.eg. The offender who may be a rebel today may become a ruler in a future date.
Though a state can provide Asylum while taking into consideration the following reasons but it has to be careful and cautious while maintaining its relationship with the other state to whose individual they have provided shelter, as it will directly affect the affinity or good relations between the 2 states. For e.g. When India granted asylum to Dalai Lama and other Tibetans, it resulted in a more strained relationship between India and China. In this case Dalai Lama and his followers were granted asylum on the ground of territorial sovereignty by India.
Asylum is the right of an Individual
As we earlier said that according to UHRD, everyone has a right to asylum, but the General assembly in 1967 considered a resolution about the Declaration on Territorial asylum, according to which “no one shall be subjected to measure such as rejection at the frontier, expulsion or compulsory return to any state where he may be subjected to prosecution but it does not mean that Art.14 provides for a right to seek and enjoy asylum.” So from this, we can draw out that the right to asylum rides with the state and it is practiced only when they have sovereignty over the territory.
KINDS OF ASYLUM
Asylum is of 2 types
- Territorial Asylum
- Extra-territorial Asylum
- TERRITORIAL ASYLUM
This type of asylum is provided by the state only when it has sovereign control over its territory and the person receiving the asylum must be in that state’s territory for getting the shelter. This is so because of the principle of Territorial Sovereignty and this depends on the discretion of the State to provide shelter or not to the refugee. It is nowhere a legal duty or obligation on the sheltering state to provide asylum to any outsider in their territory, because it may cause to protect a fugitive as well, so no compulsion for this.
When discussing it, there are no specific rules or laws on it. For this, the General Assembly called an International law commission in 1959 for the codification of laws relating to the matter of Asylum, where on 14th December of 1967 General Assembly finally adopted the Declaration On Territorial Asylum in form of a resolution. This resolution consists of Preamble and articles related to the rules regarding Asylum either of grant or refusal. It states that this right is not invoked by the individual who has been considered as a serious person who has committed such a crime that is against the peace and security of humanity or has tried to ignite war or terrorism. This has been solidified by Article 4 of the resolution that any person involved in any act contrary to principles of UNO or humanity, such person will not be permitted any kind of shelter or protection.
Thus from the above declaration, we can say that the right to grant asylum of the state is not absolute in nature. This may include international crimes like genocides, for which no asylum can be provided.
Examples of this type of Asylum
- Asylum given to Idi Amin by Saudi Arabia
- Asylum given by France to Baby Dok
- Dubai gave asylum to the biggest mafia and don Dawood Ibrahim
- The novelist Salman Rushdie’s novel Satanic Verses was a controversial book, that’s why he asked for asylum from Great Britain and received it.
- The Bangladeshi novelist Talisman Noreen because of his novel Raja asked for asylum from Sweden and received it.
- The wanted criminal of the Bombay Bomb Blast in India, Tiger Menno was provided Asylum by Pakistan
- India provided Asylum to Tibetans i.e. Dalai Lama and his followers.
- EXTRA-TERRITORIAL ASYLUM
This type of asylum states that when an individual is given active protection outside the territory of the state providing asylum, it is called Extra-territorial Asylum. It ordinarily portrays to those cases where a State will refuse the surrendering of an individual requesting who isn’t upon its own actual domain yet is on any of its public boats lying in other region outskirts or upon its political premises inside foreign regions.
Thus the asylum provided in embassies, legations, consular periods, or warships are examples of this type of asylum.
The different kinds of extra-territorial asylums are –
- Asylum in legation or embassies / Diplomatic Asylum
Basically providing such type of asylum in derogatory to the sovereignty of that state over its territory, but in some special cases it is provided and these cases are –
- The person who is in danger of physical violence.
- Because of a binding and well established local custom
- In case of a special treaty between the territory state and the legation state.
- Asylum provided in consular premises
- Asylum provided in an International Institution
In case of any imminent violation or apprehension of such a violation, temporary asylum could be provided. This is so because asylum being given in any international institution premises is not recognised and no specific law is behind this.
Such apprehension can be a danger to a refugee from a mob. When there’s no rule regarding such type of asylum, then providing temporary protection to a refugee in the premises of an International Institution cannot be ruled out just on the basis that it has not been long in practice and had no proper law regarding it. It will have the same effect as other asylums.
- Asylum provided in warship
Although not everybody agrees with this sort of asylum, as it a very conflicting issue, but in the case of political offenders, it can be provided.
It can also be given on basis of Humanity, when there is an apprehension of danger to it i.e. the person seeking asylum is in the utmost danger.
Thus we can say that it can be given only in exceptional same as asylum given in legation, along with some specific conditions.
- Merchant vessels used as a place for asylum
Although the merchant’s vessels don’t possess the immunity for the local jurisdiction, then also it can be used to provide asylum or protection to local offenders. For e.g. if a person after committing a crime on shore seeks asylum on board a foreign merchant ship he may be asserted by the local police, either before the ship leaves the port or when it comes into another port of the same State.
From this above example, it can be said that there’s no rule of giving asylum in merchant’s vessels, but they can perform so if they have a treaty regarding the same.
Thus to conclude it can be said that in extra-territorial Asylum, it can only be granted in exceptional matters and it is mandatory to establish a legal basis in each case. But in the case of territorial asylum, no such base has to be made, it solely lies on the state to provide it or not. But in this case, also there’s an exception that territorial asylum cannot be provided to a criminal whose offence is against humanity.
Therefore through all this, we can draw a point that although the rules regarding asylum are based on its declaration adopted by the UN or the treaties between the states, but for proper implementation, there is the scope of improvisation which can be done to make this principle more solid in eyes of law.