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International Status on Right to Receive asylum

Public International Law Project


On
International law status of the right to receive asylum:
An Analysis
Submitted to:
Mr. Mohammad Atif Khan
Faculty, Public International Law
By:

Pankaj Sharma
Roll no. 100
Section A
Semester IV, B.A. LLB(Hons.)
Submitted on:
February 15, 2016

Hidayatullah National Law University


Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

Acknowledgements
I feel elated to work on the project “International law status of the right to receive Asylum: An
asylum”. The practical realisation of the project has obligated the assistance of many persons
.Firstly I express my deepest gratitude towards Mr. Mohammad Atif Khan, Faculty of Public

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International Status on Right to Receive asylum

International Law, to provide me with the opportunity to work on this project. His able guidance
and supervision were of extreme help in understanding and carrying out the nuances of this project.
I would also like to thank The University and the Vice Chancellor for providing extensive database
resources in the library and for the internet facilities provided by the University.
Some printing errors might have crept in which are deeply regretted. I would be grateful to receive
comments and suggestions to further improve this project.

Pankaj Sharma
Roll No. 100
Section A, Semester IV

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International Status on Right to Receive asylum

CONTENTS

ACKNOWLEDGMENTS ………………………………………….………………2
INTRODUCTION …………………………………………………….….…………4
RESEARCH OBJECTIVES…………………………………………….…..……….6
LITERATURE REVIEW……………………………………………………………6
METHODOLOGY……………………………………………………………………7
RESEARCH QUESTIONS……………………………………………………………7
HYPOTHESIS………………………………………………………………………….7
MODE OF CITATION…………………………………………………………………8
CHAPTERISATION……………………………………………………………..……..8
SCOPE OF STUDY……………………………………………………….…………….8
TYPES OF ASYLUM……………………………………………………………………9
INTERNATIONAL INSTRUMENTS FOR PROTECTION OF REFUGEES.……13
PROTECTION OF RIGHT TO GRANT ASYLUM IN CONTEMPORARY
STATUS………………………………………………………………………………….15
REASONS FOR ASYLUM…………………………………………………………….17
IS ASYLUM A RIGHT OF PERSONS………………………………………………..19
CONCLUSION………………………………………………………………………….20
BIBLIOGRAPHY………………………………………………………………….……21

..

CHAPTER 1

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International Status on Right to Receive asylum

INTRODUCTION

The legal dictionary defines Asylum as “Protection from arrest and extradition, given especially to
political refugees by a nation or by an embassy or other agency that has diplomatic immunity” 1.
For centuries, people have been discriminated and forced to flee their homes because of conflict,
political, racial and religious persecutions, natural disasters and inhuman treatments that took place
in their societies. In exile, they sought either refuge or the protection of other countries. Human
beings have migrated since the earliest societies. The land, provided for much of their basic needs
and soon, “territory became associated with property”2.Sacred places first provided such a refuge
and
scholars are of the view that "the practice of asylum is as old as humanity itself'. The term is
referred to those cases where the territorial State declines to surrender a person to the requesting
State, and provides shelter and protection in its own territory. Thus asylum involves two elements.
1. Firstly, the shelter, which is more than a temporary refuge.

2. Secondly, a degree of active protection on the part of the authorities in control of the
territory of asylum.3

Modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of
the interwar years that preceded it. UN Declaration of Human Rights,1948, Article 14 declares that
‘everyone has the right to seek and to enjoy in other countries asylum from persecution’.The
controlling international convention on refugee law is the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Optional Protocol relating to the Status of
Refugees (1967 Optional Protocol). The 1951 Convention establishes the definition of a refugee as
well as the principle of non-refoulement and the rights afforded to those granted refugee status.
Although the 1951 Convention definition remains the dominant definition, regional
human rights treaties have since modified the definition of a refugee in response to displacement
crises not covered by the 1951 Convention. However, the establishment of asylum proceedings and
refugee status determinations are left to each State Party to develop. This has resulted in disparities

1Available at : http://dictionaryfindlaw.com/definition/asylum.html (visited on February 05, 2016).


2Daniel Warner, “Migration and Refugees: a challenge for the 21st century”, in Jean-Yves Carlier,
Dirk Vanheule,
Europe and Refugees: a challenge?,Kluwer Law International, The Hague, 1997, p. 58
3 I.A. Shearer, Starke’s International Law 323 (Butterworth, London, 11th edn. 1994).

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International Status on Right to Receive asylum

among different States as governments craft asylum laws based on their different resources,
national security concerns, and histories with forced migration movements. Despite differences at
the national and regional levels, the overarching goal of the modern refugee regime is to provide
protection to individuals forced to flee their homes because their countries are unwilling or unable
to protect them.

Who Is a Refugee?
Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is outside his or her
country of nationality or habitual residence who is unable or unwilling to return due to a well-
founded fear of persecution based on his or her race, religion, nationality, political opinion, or
membership in a particular social group. Applying this definition, internally displaced persons
(IDPs) – including individuals fleeing natural disasters and generalized violence, stateless
individuals not outside their country of habitual residence or not facing persecution, and
individuals who have crossed an international border fleeing generalized violence are not
considered refugees under either the 1951 Convention or the 1967 Optional Protocol.

Who is an asylum seeker?

An asylum-seeker is someone who has left their country in search of international protection, but is
yet to be recognized as a refugee.

RESEARCH OBJECTIVES

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International Status on Right to Receive asylum

The objective of this project is:


1. To emphasize the International status on right to seek Asylum.
2. To Understand the law for Protection of refugees.
3. To understand the right of a person to grant asylum.

LITERATURE REVIEW
 Agrawal, H.O., International Law and Human Rights, Central Law Publication, 20th
edition 2015
This books deals with the different forms of Asylum provide to asylum seekers and helps in
to provide the right of persons and reasons for Asylum. This books also stated the various
Laws and Convention towards right to grant Asylum.

 Kapoor, S.K., International Law and Human Rights, Central Law Agency, 18 th edition
2011.
This book basically deals with the meaning and definition of Asylum and helps to
understand the case laws and example of international status on right to receive Asylum. It
also helps to provide the Various International Instrument in Protection of refugees.

 Starke’s International Law, eleventh Edition (1994), edited by I.A. Shearer


This books helps in to deal with the international legal right involved in that of state of
refuge itself to grant asylum. Definition according to Article 1 of the resolution adopted by
the Institute of International Law in 1950.

 Hall, International Law, eighth edition, 2012


This book help in to understood the example of Dalai Lama and his Tibetan Followers with
respect to right to grant asylum.

METHODOLOGY

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International Status on Right to Receive asylum

This Research Project is doctrinal in nature. Accumulation of the information on the topic includes wide
use of primary sources such as cases as well as secondary sources like books, e-articles etc. The matter
from these sources have been compiled and analysed to understand the concept and reproduced it afresh in
this project.

Websites, dictionary and articles have also been referred.

QUESTIONS
This project aims to answer questions such as What is asylum? What is an asylum seeker? Is
asylum a right of person? What are its various forms such as Territorial and Diplomatic asylum. It
further tries to answer that What are the procedures and the minimum conditions for granting
asylum?

HYPOTHESIS

Everyone has a right to seek asylum and to enjoy in other countries asylum from persecution.
Grant of asylum is a sovereign right of a state not to those who have planned, facilitate or
committed terrorists Acts. However, the concept of asylum has still not acquired the necessary
clarity.

MODE OF CITATION

This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and bibliography.

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International Status on Right to Receive asylum

CHAPTERISATION

The project broadly has been divided into 4 chapters. Chapter 1 comprises of the introduction to
the topic along with the research methodology that has been adopted in this project. Chapter 2
comprises of the Right to receive asylum and its various types such as Territorial, Extra-territorial
or Diplomatic Asylum. Chapter 3 covers up the International instruments for protection of
refugees. Chapter 4 is the conclusion of the project which sums up this project.

SCOPE OF STUDY

Due to time constraint this project aims to cover the International status of Right to receive Asylum
in a nutshell. This project does not cover in detail each mode. The various types of asylum have
been dealt in brief giving mention to procedure while granting asylum. The project report is
descriptive and thus it does analyse the protection of refugees.

CHAPTER-2
KINDS OF ASYLUM
Types of Asylum and distinction between Territorial and Extra- territorial Asylum
or Diplomatic Asylum-- Asylum may be classified into two categories (1) Territorial and
(2) Extra-territorial.

In the Asylum Case (Colombia v. Perus} the international Court of Justice explained
the distinction between territorial asylum and dipolomatic asylum in the following words :

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International Status on Right to Receive asylum

“In the case of extradition (territorial-asylum'), the refugee is within the territory of the
State of refuge. A decision with regard to edition implies only the normal exercise of
territorial sovereignty. The refugee is ide the territory of the State where the offence was
committed, and a decision to grant him asylum in no way derogates from the sovereignty of
that State. 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 territory State and constitutes an intervention in matters which are exclusively within
the t competence of that State. Such a derogation from territorial sovereignty cannot be
recognised 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 ot the territorial State
in so far that State is required to acquiesce in fugitives from its authorities enjoying
protection from apprehension.” Further each State “has a plenary right to grant 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.”

1. Territorial asylum
Territorial asylum is asylum that given in the place belongs to jurisdiction of asylum donor country.
Territorial asylum can be given not only on shore but also on water if asylum seekers come into by
ship, and live on its during asylum seeking process, or until go to other country 4. In dealing with
giving territorial asylum can be classified in:

a. Political asylum because of oppression to people by authority caused political distinction.


b. Refugee asylum given by reasons for fear of persecution in country of origin

4(starke, 2007 :476).

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International Status on Right to Receive asylum

c. General asylum given to escapees from their country of origin to get economic development but
their status are not immigrant
It is designed and employed primarily for the protection of persons accused of political offences
such as treason, desertion, Sedition, religious refugees. A well known case is Dalai Lama of Tibet5.
The General Assembly said in the Declaration of territorial asylum (1967) that the grant of
asylum is a humanitarian act and it cannot be regarded as unfriendly by another state. States
granting asylum shall not permit persons engaged in activities contrary to the purpose and
principles of the U.N.
This declaration consists of a Preamble and four Articles, dealing with the principles relating to the
grant or refusal of asylum and with the interest of the international community in the question of
asylum. Article 1 of the Declaration provided that asylum granted by a state is to be respected by
all other States. It also Stated that the right to seek and enjoy asylum may not be invoked by any
persons with respect to whom there are serious reasons for considering that he has committed a
crime against peace, a war crimes or crimes against humanity. Article 2 stated that the situation of
persons seeking or enjoying asylum is of concern to the international community. Article 3
provided that no person covered by the Declaration Shall be subjected to measures such as
rejection at the frontier, expulsion or compulsory return to any state, where he might be subjected
to persecution. Article 4 provided that States granting asylum shall not permit persons, who have
received asylum to engage in activities contrary to the purposes and principles of United Nations.

Draft Convention on territorial asylum


In order to given legal basis for granting asylum, efforts were made to formulate a Convention on
the topic. The draft Convention on Territorial asylum was adopted by the General Assembly on
December 10,1974 but it again did not improve the position. 6 Article 10 of the Draft Convention
recognized that the grant of asylum is a sovereign right of State, but State parties shall use their
‘best endeavours’ in a ‘humanitarian spirit’ to grant asylum in their territory.
1. Extra-territorial asylum
Asylum that given at the place which belongs to asylum donor country or legal necessary but the
location is in other state. In general this place admitted as inviolable place or having immunity
from jurisdiction the state where place in.

5
6 General Assembly Resolution 3272(XXIX), December 10, 1974

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International Status on Right to Receive asylum

Place where diplomatic asylum could be given:


 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. Diplomatic
asylum is not a general principle of International Law, and as such a State is not bound to
give asylum in its embassies. Oppenheim has rightly stated that the practice of granting
diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of
dispute to what extent it forms part of general international law.7 However, asylum may be
granted to individuals in legation premises in the following cases: Firstly, as a temporary
measure, to individuals physically in danger from mob or from the fear of the government.
It implies that asylum is given to a person whose life has become unsecured. But it is
granted as a temporary measure, i.e. asylum continues so long the element of fear exists.
Secondly, it is granted by those States where there is a binding local custom in this regard, 8
and thirdly, when there is a treaty between the territorial State and the State which is
represented by the legation concerned.

 Asylum in the premises of International Institutions – whether a person taking a refuge


in the premises of an international institution or organization would be granted asylum is a
question which cannot be given with certainty in the absence of any rule in this regard and
also because of the lack of practice. However, a right to grant temporary refuge in an
extreme case of danger from mob cannot be ruled out. 9There 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.

 Asylum in 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 do not have immunity.

7 Oppenheim’s International Law, op. cit., p. 1082


8 Starke, op. cit., p. 327
9 Starke, op. cit., p. 328

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International Status on Right to Receive asylum

Asylum in Merchant vessels – Merchant Vessels are not exempted from the local
jurisdictions, and therefore, asylum cannot be granted to an offender. Thus, if a person after
committing a crime on shore seeks asylum on board a foreign merchant ship he may be arrested
by the local police, either before the ship leaves the port or when it comes into another port of
the same state. Therefore, a rule that asylum is not granted on merchant vessels. 10 However,
States may grant asylum if thev conclude a treaty to this effect. For instance, Central American
Republics have contracted to bind themselves to respect the inviolability of the right of asylum
aboard the merchant vessels of whatsoever nationality anchored in their waters But it is binding
only upon the signatories to the treaty.

In the Asylum Case (Colombia vs. Peru)11 ,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. A decision 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 derogates from the sovereignty of that State. 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. Such a
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 states in so far that State is required to acquiesce in fugitives from its authorities
enjoying protection from apprehension.” State has a plenary right to grant 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.”12

10 O’Connell, ‘International law’ vol. II, Pg. 814


11 ICJ Reports (1950), p. 266
12 Starke, note 1, p. 358

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International Status on Right to Receive asylum

CHAPTER -3
INTERNATIONAL INSTRUMENTS FOR PROTECTION OF
REFUGEES

Tne instrument for the international protection of refugees are the 1951 U. N. Convector Relating to the
States 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 Refugees entered into force on October 4. 1967. So far 138 States ha
we I protocol. Besides these, there is U. N. High Commissioner for Refugees! established on 1 January.
1961 to give legal protection to the refugees and to them material assistance. The convention is based on two
principles—(I) as far as possible between nationals and refugees; and (a) non discrimination , based on race,
religion or country or amongst refugees it may be here that Article 31 of the 1951 U.N. Refugee Convention
exempts refugees directly i country of prosecution from punishment on account of their illegal entry or
presence provided they present themselves without delay to the authorities and show -3d cause for their
illegal entry or presence. Further the contracting states parties shall not apply to the movements of such
refugees restrictions other than those which are necessary and that any restrictions shat only be applied unit
their status is regularized 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 food which are inconsistent
with their refugees status. Reference may aiso be made to file principle of non-refoulement incorporated in
the Convention. This principle n fundamental to the entire structure of international action in favour 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 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 wet-founded fear of persecution
because of reasons! race religion, nationality, membership in a particular social group or political opinion”. SI
tar tie Protocol has been signed by 147 countries.
In its note on International Protection of Refugees,the U. N. High Commission o Refugees highlighted the
problems faced by refugees. There are problems in regard I admission of refugees and to the standards of
treatment accorded to them. States have tendency to view asylum and the refugee concept in a restrictive
manner and to resort 'measures of “deterrence" including unjustified detention of refugees, sometimes un
harsh conditions. In addition, there is intractable problem of violations of the physical safety of refugees

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International Status on Right to Receive asylum

through armed attacks on refugee camps and settlements, forced conscription, piracy attacks on the failure of
passing ships to rescue asylum-seekers distress on high seas.
A UNHCR Panel in Geneva on, 11 April, 1984 expressed concern about ‘xenophobic altitudes towards
refugees and appealed to the public the media and Government combat xenophobic trends and to treat
refugees according to recognized human standards.9 Last but not the least since 1965. UNHCR has launched
the U. N. Car to break down mounting barriers erected against the tide of refugees worldwide treat refugees as
assets.
International legal instruments take the form of a treaty (also called
agreement, convention, protocol) which may be binding on the contracting states. When
negotiations are completed, the text of a treaty is established as authentic and definitive and is
“signed” to that effect by the representatives of states. There are various means by which a state
expresses its consent to be bound by a treaty. The most common are ratification or accession. A
new treaty is “ratified” by those states who have negotiated the instrument. A state which has not
participated in the negotiations may, at a later stage, “accede” to the treaty. The treaty enters into
force when a pre-determined number of states have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles
of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be
withdrawn at any time. In some countries, international treaties take precedence over national law;
in others, a specific law may be required to give an international treaty, although ratified or
acceded to, the force of a national law. Practically all states that have ratified or acceded to an
international treaty must issue decrees, amend existing laws or introduce new legislation in order
for the treaty to be fully effective on the national territory. Many international treaties have a
mechanism to monitor the implementation of the treaty. The Refugee Convention does not have
such a body that monitors state obligations and commitments towards asylum seekers.

The following international and regional treaties determine standards for the protection of refugees

and displaced persons:

 Universal Declaration of Human Rights (1948) (article 14):- The first international
document that recognizes the right to seek and enjoy asylum from persecution.
 Geneva Convention relative to the Protection of Civilian Persons in Time of
War (1949) (article 44, 70):- This treaty protects refugees during war. Refugees cannot be
treated as “enemy aliens”.

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International Status on Right to Receive asylum

 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol 1) (1977) (article
73) :- "Persons who, before the beginning of hostilities, were considered as stateless
persons or refugees ... shall be protected persons..., in all circumstances and without any
adverse distinction."
 Convention Relating to the Status of Refugees (1951):- This was the first international
agreement covering the most fundamental aspects of a refugee’s life. It spelled out a set of
human rights that should be at least equivalent to freedoms enjoyed by foreign nationals
living legally in a given country and in many cases those of citizens of that state. It
recognized the international scope of refugee crises and necessity of international
cooperation -- including burden-sharing among states -- in tackling the problem. As of 1
October 2002, 141 countries had ratified the Refugee Convention.
 International Covenant on Civil and Political Rights (1966) (article 2, 12, 13):- The
main international treaty on civil and political rights stipulates that states should ensure the
civil and political rights of all individuals within its territory and subject to its jurisdiction
(article 2). The Covenant also guarantees freedom of movement and prohibits forced
expulsion.
 Protocol Relating to the Status of Refugees (1967):- Removes the geographical and time
limitations written into the original Refugee Convention under which mainly Europeans
involved in events occurring before 1 January 1951 could apply for refugee status.

CHAPTER-4
PROTECTION OF RIGHT TO GRANT ASYLUM IN CONTEMPORARY
STATUS
Prohibition on the forced return of a refugee is called non-refoulement and is one of the most
fundamental principles in international refugee law. This principle is laid out in Article 33 of
the Convention Relating to the Status of Refugees, which says that no state "shall expel or return a
refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group or
political opinion.

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International Status on Right to Receive asylum

However, in practice the international law assigns no responsibilities for states to grant asylum, and
‘the right of states to grant asylum takes precedence over the right of individuals – would-be
13
refugees – to receive it’. The fundamental principle in the global migration structure that is
supposed to protect the right to asylum is the non-refoulement principle, which all states
acknowledge. According to the non-refoulement principle set by Article 33 of the Refugee
Convention, states are obligated not to expel individuals to areas where there is a threat of being
subjected to persecution. In other words, each state has an obligation to process the asylum claims
of only those individuals who make first-asylum claims on their jurisdictional territory. Even this
requirement is, however, a weak requirement. If asylum seekers have passed through other
countries after leaving the state of departure, states reserve the right to return the asylum seekers to
the ‘first country of arrival’ without processing asylum applications, or to a ‘safe third country’ 14.
Apart from having control over the process which determines whether the first-asylum seekers
applying for resettlement are in fact forcibly displaced and thus qualify for qualify for the status of
refugee, states also judge for themselves the extent of their own duties towards refugees. If the
claims are deemed valid by the state in which the asylum claims are filed, and if the state holds that
it is yet to fully discharge its duties towards refugees, the right to asylum is protected by the state
through compliance with the non-refoulement principle.15
Asylum seekers may have already suffered imprisonment and Torture in the country from
which they have fled. Therefore, The consequences of detention may be particularly serious,
causing severe emotional and psychological stress. Article 31 of the Refugee Convention says that
refugees should not be penalized for having entered a country illegally if they have come directly
from a place where they were in danger and have made themselves known to the authorities.
Therefore, asylum seekers should not be detained for being in possession of forged identity papers
or for destroying identity or travel documents.
Articles 12 - 30 of the Refugee Convention set out the rights which individuals are entitled to once
they have been recognised as Convention refugees:

 All refugees must be granted identity papers and travel documents that allow them to travel
outside the country

 Refugees must receive the same treatment as nationals of the receiving country.

13 Haddad, Emma 2008, 79.


14 Hathaway, James C. 2005, 323-328.
15 Dummet 2001, 32.

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International Status on Right to Receive asylum

 Refugees must receive the most favourable treatment provided to nationals of a foreign
country.
 Refugees must receive the same treatment as that accorded to aliens generally.
 Refugees must receive the most favourable treatment possible, which must be at least as
favourable to that accorded aliens generally in the same circumstance.

Reasons for asylum


A state grants asylum to a person because of many reasons.
1. It is granted to save a person from the jurisdiction of the local authorities. It is feared
that he would not get fair trial, if extradited, because of the differences in views as to
his political or religious activities.

2. A person may be granted asylum on extra legal grounds or to say on humanitarian


grounds. The International Court of Justice in Corfu Channel case 16, stated that ‘asylum
may be granted on humanitarian grounds in order to protect political offenders against any
measures of a manifestly extra-legal character which a government might take or attempt to
take against its political Opponents.17 Thus asylum is granted for preventing other human
rights violations.

3. National Security also plays an important role in granting asylum. The Offender who
may be a rebel today may become the ruler in future date. In that case, the relationship
would be strained if he is extradited.
Although a State may grant asylum after taking into consideration of any of the above factors,
States adopt a Cautious approach before doing so. Its implications on the Existing Relationship
with State of whose Persons asylum is granted is well studied because it normally affects the
friendly relations of two States despite a clear Provision in the Declaration on territorial Asylum
that grant of asylum shall not be considered as an unfriendly act. Asylum granted to Dalai lama and
other Tibetans by India resulted in more Strained Relationship between India and china is an
example.

16 ICJ Reports (1949) p.4


17 Ibid,p. 282

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International Status on Right to Receive asylum

Is asylum a Right of Person?


It is said that a person has a right to get asylum in other States. Universal Declaration of Human
Rights under Article 14, lays down that ‘everyone has the right to seek and to enjoy in other
countries asylum from persecution’. This right was expressed as a response to the concern for
refugees and stateless persons after the World War II. The above provision might give an
impression that a person has a right to get asylum in any state but it is to be noted that the
document was adopted by the General assembly by way of declaration and as such it has no legal
force. States are under, in no way, legally bound to accept the above provision. The right to grant
asylum is the prerogative of the states. In 1950, the Institute de Droit International confirmed the
character of asylum as a discretionary power belonging to sovereign States.18 It may be stated that
the UDHR under Article 14 provides, for a right to ‘seek and enjoy’ asylum. Right to enjoy asylum
therefore means no more than the right to enjoy it if it is granted. 19 Further, if asylum is regarded as
to that of a right of a person, it would mean that States have a corresponding duty to grant asylum.
But, it is not true. States under International Law have no such duty to grant asylum to a person. It
exercises complete discretion in this regard subject to certain commitments made by way of
conclusion of extradition treaties. The constitutions of a number of Countries20 expressly grant the
right of asylum to persons persecuted for political reasons, but it cannot yet be said that such a
right has become a ‘general principle of law’ recognized by civilized nations and as such forming
part of International law.21
It may be noted that the right to grant asylum vests in the state. It is exercised on the
basis of the principle of territorial sovereignty. Although the Draft Convention on Territorial
Asylum provides that the parties to the convention shall use their ‘best endeavours’ in a
‘humanitarian spirit’ to grant asylum in their territory to a person eligible under Draft
Convention, it cannot be interpreted as that States have under any legal obligations to grant
asylum to them.

18 Declaration on Territorial Asylum(General assembly Resolution 2312 XXII of December 14,


1967.
19 F. Morgensten, ”the Right of Asylum” BYIL vol.26(1949)p. 327
20 For i.e. Preamble of French Constitution of 1946; Article 10 of Italian Constitution of 1947;
Article 16 of German Republic of 1949.
21 Oppenheim’s International Law’, Vol. I, 9th edition (1992) p. 902

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International Status on Right to Receive asylum

CONCLUSIONS
To be concluded it, the right to asylum is a fundamental right, which should be protected to all
forcibly displaced individuals regardless of their community of origin. While international law
includes a general right to exit from any state individuals reside in, it stops short of recognising a
general right of entry. The UDHR Article 13(1) recognises that ‘everyone has the right to freedom
of movement and
residence within the borders of each state’, and Article 13(2) states that ‘everyone has the right to
leave any country, including his own, and to return to his country’ it may be argued that all states
equally share the responsibility to remedy the global refugee problem. when the physical security
and the basic opportunities of citizens are not threatened, states have a duty to protect the right to
asylum for non-members states have a collective responsibility towards restructuring the global
migration structure in such a way that it promotes effective response and burden-sharing.
Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent
and disorderly action of irresponsible sections of the population.” The grant of asylum is not an
instantaneous act which terminates with the admission, at a given moment of a refugee to an
embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a
state of protection, the asylum is granted as long as the continued presence of the refugee in the
embassy prolongs this protection.

BIBLIOGRAPHY
Books

 For an overview of the evolution of this institution, see A Grahl-Madsen, Territorial


Asylum (Almqvist & Wiksell International 1980),

19
International Status on Right to Receive asylum

 Institute of International Law (5th Commission), ‘Asylum in Public International Law’,


Resolutions Adopted at its Bath Session, Sept 1950, art 1.
 P Weis, ‘Territorial Asylum’ (1966) 6 Indian Journal of International Law 173, 194.
 Agrawal, H.O., International Law and Human Rights, Central Law Publication, 20 th edition
2015.
 Kapoor, S.K., International Law and Human Rights, Central Law Agency, 18th edition 2011.
 Haddad, E., The Refugee in International Society – Between Sovereigns (Cambridge:
Cambridge University Press, 2008)
 Hathaway, J. C., The Rights of Refugees under International Law, (Cambridge: Cambridge
University Press, 2005).
 Dummet, M., On Migration and Refugees, (London: Routledge, 2001)
 Starke’s International Law, eleventh Edition (1994), edited by I.A. Shearer
 Hall, International Law, eighth edition, 2012

Articles
 http://www1.umn.edu/humanrts/edumat/studyguides/refugees.html
 http://asylumwork.blogspot.in/2012/01/selected-bibliography-with-hyperlinks.html

websites
 http://www1.umn.edu/humanrts/edumat/studyguides/refugees.html
 www.unhcr.ch

 www.Jstor,com

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