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Human Rights Law

Atty. Manuel Sarausad


Reyvi Dominguez
Gammycel Sarausad
Mervic Al Tuble
Monday 6:00 8:00 PM, M4
The Universal Declaration of Human Rights- Right to Seek Asylum
Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from
persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from
non-political crimes or from acts contrary to the purposes and principles of the United Nations.
I. Asylum in General
Asylum is the protection given by a government to someone who has left another country
in order to escape being harmed; an inviolable place of refuge and protection giving shelter to
criminals and debtors: sanctuary.
Three element of the right to asylum under international law:
a) The right of an individual to seek asylum
b) The right of a state to grant asylum, and
c) The right of an individual to be granted asylum
The right to seek asylum is the specific right to leave ones own state and enter another
territory for the purpose of claiming protection from persecution under domestic or international
law. Such a right is the elementary right from which all other rights of asylum, and the refugee
convention, are based.
The granting of asylum is first and foremost a state right, in recognition of state
sovereignty. Every state has exclusive sovereignty over its territory and the people within it. As
such, states have the right to grant entry, residence and refuge to any individual located within its
borders. While the UDHR provides for the right to seek asylum, thetravaux
prparatoires highlight that such a right was never intended to displace the states right to grant
asylum. Indeed, the UDHR was understood to explicitly recognise the states right to grant
asylum, while the individual only has a right to seek and enjoy.
A refugee must have undergone a process of seeking asylum outside of their country of
origin. However, the granting of refugee status does not automatically entail the granting of
asylum. Indeed, millions of people have been recognized as refugees, yet live in protracted
situations without protection. In fact, the Refugees Convention does not address the granting of
asylum, leaving the granting of asylum to the sovereignty of states. While refugees, and others,
have to right to non-refoulement, as discussed later, this is not equivalent to receiving asylum. As
Hathaway notes, the duty of non-refoulement is not, however, the same as a right to asylum

from persecution. Indeed, non-refoulement, only prohibits measures that cause refugees to
return to persecution, it does not establish a duty on states to receive refugees.
Under the Refugees Convention, protection is only provided to those fleeing persecution
for reasons of race, religion, nationality, membership of a particular social group or political
opinion, known as the nexus grounds. In contrast, the granting of asylum, in recognition a states
sovereignty may be applied in a much broader sense than the Refugees Convention. Indeed, the
Special Rapporteur of the International Law Commission has noted that there is no limit placed
on the forms of persecution that can result in the granting of asylum, in contrast to the forms of
persecution which open the way to refugee status. As such, asylum seekers may be fleeing more
general violence, the death penalty, war and conflict, torture or unfair prosecution. Unlike
the Refugees Convention, persecution under asylum does not have to be for one of the nexus
grounds, indeed such a decision to grant asylum is up to the discretion of the state.
II. Background
The concept of providing protection to those fleeing arrest by a pursuer has been used
throughout the centuries. Throughout the ages, asylum was offered as a way to provide mercy,
justice and fairness to those fleeing unjust punishment under the law. In ancient Greece, a person
in need of protection from a pursuer could enter a sacred place in order to claim supplication.
The Jewish Torah provided a form of asylum to those fleeing retribution for involuntary murder.
In Christianity, and within the Roman Empire, churches have historically been seen as place of
sanctuary. The right to asylum is also provided under Islamic Shariah law. Indeed, the concept
of asylum is said to be as old as humanity itself.
The United Nations1951 Convention Relating to the Status of Refugees and the
1967 Protocol Relating to the Status of Refugees guides national legislation concerning political
asylum. Under these agreements, a refugee (or for cases where repressing base means has been
applied directly or environmentally to the defoul refugee) is a person who is outside their own
country's territory (or place of habitual residence if stateless) owing to fear of persecution on
protected grounds. Protected grounds include race, caste, nationality, religion,political
opinions and membership and/or participation in any particular social group or social activities.
Rendering true victims of persecution to their persecutor is a particularly odious violation of a
principle called non-refoulement, part of the customary and trucial Law of Nations.
These are the accepted terms and criteria as principles and a fundamental part in the 1951 United
Nations Convention Relating to the Status of Refugees non-refoulementorder.[8]
Since the 1990s, victims of sexual persecution (which may include domestic violence, or
systematic oppression of a gender or sexual minority) have come to be accepted in some
countries as a legitimate category for asylum claims, when claimants can prove that the state is
unable or unwilling to provide.

III. Forms of Asylum

There are a number of different forms of asylum recognized in contemporary


international law. The Special Rapporteur of the International Law Commission has noted that
there are three different types of asylum: territorial or internal asylum, extraterritorial or
diplomatic asylum, and neutral asylum. Territorial asylum is the granting of asylum within the
host states territory, extraterritorial asylum refers to a state granting asylum in places outside its
territory but subject to a states jurisdiction (such as embassies), and neutral asylum involves a
neutral state providing shelter to those seeking refuge from the calamities of war.

References
https://en.wikipedia.org/wiki/Right_of_asylum
http://asherhirsch.com/2015/04/20/the-right-to-seek-asylum-in-customary-internationallaw/
http://www.merriam-webster.com/dictionary/asylum
Article: The Right to Seek Asylum: A Dwindling Right?
https://www.wcl.american.edu/hrbrief/v2i2/asylum.htm
Video: http://www.humanrights.com/what-are-human-rights/videos/right-to-asylum.html

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