THE

CONCEPT
OF
ASYLUM
INTERNATIONAL
HUMANITARIAN
LAW PROJECT

UTKARSH JHINGAN
1178
IX-B
CONTENTS
INTRODUCTION.......................................................................................................................2

WHAT IS ASYLUM?.................................................................................................................2

DIPLOMATIC versus TERRITOTIAL ASYLUM....................................................................4

STATE PRACTICES...................................................................................................................5

NON REFOULEMENT...............................................................................................................7

ASYLUM: AN IMPLIED RIGHT?.............................................................................................9

RECOMMENDATIONS...........................................................................................................10
INTRODUCTION
The concept of asylum has been in existence for at least 3,500 years and is found, in one form or
another, in the texts and traditions of many different ancient societies. If the right of asylum is to
play a meaningful role in the system of protection of individuals fleeing persecution, the issues
of admission and burden-sharing must be addressed.1 Human rights advocates cannot simply
insist upon this right and states cannot refuse to act in the humanitarian spirit in which they
drafted and adopted human rights and refugee treaties and declarations. In fashioning solutions to
the plight of refugees, the confluence of interests present in the concept of asylum must be
emphasized and humanitarianism must be perceived as the highest goal.

WHAT IS ASYLUM?
The word asylum is the Latin counterpart of the Greek word asylon, which means freedom from
seizure. Historically, asylum has been regarded as a place of refuge where one could be free from
the reach of a pursuer. Sacred places first provided such a refuge and scholars are of the view
that the practice of asylum is as old as humanity itself.2

Despite its long history and worldwide practice, the term asylum still awaits a universally
accepted definition. An authority in the area of refugee law, the late Professor Atle Grahl-
Madsen, voiced the common observation of scholars that, the term 'asylum' has no clear or
agreed meaning.3

Notwithstanding this caveat, when the discussion turns from the meaning of asylum as a term to
its meaning as a right, scholars are able to list concrete elements of that right. Indeed, the right of
asylum has been said to comprise certain specific manifestations of state conduct: (i) to admit a
person to its territory; (ii) to allow the person to sojourn there; (iii) to refrain from expelling the
person; (iv) to refrain from extraditing the person; and (v) to refrain from prosecuting, punishing,
or otherwise restricting the person's liberty.4

1
Available- https://www.scribd.com/document/346410116/The-State-of-the-Right-of-Asylum-in-International-Law-
pdf
2
UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, THE STATE OF THE WORLD'S
REFUGEES: THE CHALLENGE OF PROTECTION 33 (1993)
3
ATLE GRAHL-MADSEN, TERRITORIAL ASYLUM 50 (1980)
4
Tom Clark, Human Rights and Expulsion: Giving Content to the Concept of Asylum, 4 INT'L J. REFUGEE L.
189, 190 (1992)
Different facets of Asylum

 The Right of a State to Grant Asylum.

The right of a state to grant asylum is well established in international law. It follows from the
principle that every sovereign state is deemed to, have exclusive control over its territory and
hence over persons present in its territory.5 One of the implications of this generally recognized
rule is that every sovereign state has the right to grant or deny asylum to persons located within
its boundaries. Traditionally, thus, in international law, the right of asylum has been viewed as
the right of a state, rather than the right of an individual.6

 The Right of an Individual to Seek Asylum.

Another aspect of the right of asylum is the right of an individual to seek asylum. This is an
individual right that an asylum-seeker has vis-a-vis his state of origin. Essentially, it is the right
of an individual to leave his country of residence in pursuit of asylum. The basis for this right is
the principle that a State may not claim to own its nationals or residents. This right is enshrined
in several international and regional instruments. Article 13(2) of the Universal Declaration of
Human Rights proclaims that, everyone has the right to leave any country, including his own.
While in the strict sense the Universal Declaration of Human Rights is not a legally binding
instrument, it has been declared to set forth the inalienable and inviolable rights of all members
of the human family and [to constitute] an obligation for the members of the international
community. Moreover, the Declaration has been said to be an authoritative expression of the
customary international law of today in regard to human rights.7 The right of an individual to
leave his country can thus be seen as a part of modem customary international law.

 The Right of an Individual to be Granted Asylum.

Lastly, right under the umbrella of the right of asylum is the right of an individual to be granted
asylum. While Grotius and Suarez are said to have recognized the right of asylum as the natural
right of an individual entailing a corresponding state duty to grant asylum, this view has not yet
been generally recognized under international law. International and regional instruments dealing

5
Felice Morgenstern, The Right of Asylum, 1949 BRrr. Y.B. INT'L L. 327.
6
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 121 (1983)
7
H. Waldock, General Course of International Law, 106 RECUEIL DES COURS 32 (1962).
with human rights, asylum, and refugees, as well as the failure of the international community to
agree on a convention on territorial asylum illustrate the general proposition that, in international
law today, an individual has no right to asylum enforceable vis-a-vis the state of refuge. Article
14(1) of the Universal Declaration of Human Rights proclaims the right of an individual to seek
and to enjoy in other countries asylum from persecution. Scholars agree that this provision
merely affords the individual a right to seek asylum, not a right to receive it.8

DIPLOMATIC versus TERRITOTIAL ASYLUM

Diplomatic and territorial asylum should be differentiated. Territorial asylum is about giving
permission for foreigners to enter and stay in the country, since they are prosecuted and
discriminated for their religious, political or cultural views or activities. A person is guaranteed
that he or she would not be handed back at a request of the state of their citizenship. If an
individual is granted asylum, it means that extradition cannot anymore be used toward him. Latin
America is the only continent where the two institutions are regulated and utilized according to
the law.9 The main difference between both of them is that in the case of territorial asylum a state
provides a protection on its own territory, whereas in the case of diplomatic asylum in diplomatic
representative institutions. In other words, they realize the right not on their own territory, yet in
the area of a host country.

According to B. Wierzbicki, the difference between territorial and diplomatic asylum concerns
the legal basis and the place of a granting procedure. A category of people who can apply for
asylum is other basis for differentiating the two terms. ICJ in its verdict in 1950 about the
disagreement between Columbia and Peru pointed out the difference between territorial and
diplomatic asylum. In the second case a person who applies for the asylum stays outside the
country, where he or she committed a crime or is prosecuted because of racism or his/her
political and religious views. Granting the asylum does not mean excluding an individual from
the jurisdiction of the state, because at that moment he stays on the territory of a country that
gives it. To underline the differences between the two institutions some authors describe
diplomatic asylum as non-territorial, extraterritorial or internal. Diplomatic asylum is treated
here as a form of non-territorial asylum, to which we can include asylum on warships, aircrafts,

8
Stephen B. Young, Between Sovereigns: A Reexamination of the Refugee's Status, in TRANSNATIONAL
LEGAL PROBLEMS OF REFUGEES 339,(1982).
9
http://www.acnur.org/paginas/index.php?id_pag=6961
military bases and consulates. Very frequently the diplomatic asylum is used for defining all of
those forms. Such a viewpoint is particularly common in Latin America. As well as there are
followers of such a doctrine, there are also those, who consider that we should restrict only to the
asylum granted in the diplomatic missions. Contemporary practitioners try to limit granting the
asylum to diplomatic purposes.10

STATE PRACTICES
Only a few states have taken any formal steps to incorporate exemption from penalties. Recent
legislation seems to be the exception, however, and new laws in Portugal, Spain and Zimbabwe
provide that person illegally for the purpose of seeking asylum will not be punished. In a number
of other countries, illegal entry is often tolerated in practice, provided that asylum-seekers report
promptly to the authorities.

A formal distinction in law between refugees and others is rare, however, and was present in the
legislation of only six of the states reviewed. In Belgium the law provides for the issue of
appropriate documents to asylum-seekers who arrive without passports or visas. Refugees and
asylum-seekers are commonly subject to the same law as is applied to aliens or to nationals.
They may thus be exposed to prosecution, punishment and/or detention, on account of illegal
entry, entry without documents or with falsified documents. Detention may also be ordered
where the applicant for asylum is considered likely to abscond or is viewed as a danger to the
public or national security.

In many countries, even those which have not ratified the Convention and Protocol, leniency is
shown to refugees, although this often depends greatly on prospects for resettlement elsewhere.
Recently, certain countries have adopted more stringent policies towards certain groups. Thus,
Indo- Chinese refugees in South East Asia are sometimes admitted only to closed camps. They
are either held pending resettlement or voluntary repatriation, or are confined indefinitely,
without immediate prospects of alternative solutions, as part of policies of humane deterrence.
Refugees of other nationalities are frequently left at liberty. The benefit of exemptions or
discretion often depends on refugees coming directly from territories in which their lives or
freedom may be threatened. Time spent in transit or in a country of first refuge may make a

10
http://www.stosunki.pl/?q=node/1128]
refugee ineligible for asylum or admission, even if non-returnable to any other country. The
ineligibility itself can lead to detention, pending removal. 11

Finally, refugees and asylum-seekers may be detained under general powers relating to national
security and public order, or under special emergency powers. In some countries, the claim to
refugee status itself makes the applicant politically suspect; in others, racial origin, religious
conviction or fear of political problems with neighboring states may be used to justify the
confinement of large groups. Some form of review of the legality of detention is frequently
available, at least in theory. Courts actual powers may be limited, however, to confirming that
the detention is formally lawful; they may also be restricted by the terms of emergency
legislation. Appeals against detention, either administrative or judicial, were available in twenty-
four of the forty-five countries reviewed. Access to legal counsel was also commonly available,
at least in theory, although costs could be an inhibiting factor. Release on bail, parole, or
guarantee might also be granted in appropriate cases; in several countries, UNHCRA guarantees
or offers to seek resettlement were acceptable to the authorities.12

There are divergencies of detail, but the overall conclusions to be drawn from current state
practice confirm many of the misgivings expressed earlier regarding the treatment of refugees
and asylum-seekers. Among the grounds for detention it is common to find, of course,
immigration or immigration related offenses. Also, despite the provisions of the Convention and
the overall objectives of the regime of protection, detention is a common precedent to actual or
attempted expulsion, again with little regard being paid to the special situation of the refugee in
flight from persecution.

In recent years, states have reacted negatively to increases in the numbers of asylum-seekers,
and have attempted to stem the tide and to deal summarily with so-called manifestly unfounded
cases. Where formal procedures for the determination of refugee status exist, measures of
deterrence have included confinement or other limitations on freedom of movement, denial of
the right to work, and reduction of assistance to the lowest possible level, often over long periods
pending final decisions on status. In other states, it has been the overt and openly-declared policy
to detain refugees and asylum-seekers indefinitely, with no prospect of local integration or third

11
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 121 (1983)
12
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 121 (1983)
country resettlement; such measures often apply to specific groups identifiable by reference to
race or national origin, and already appear tainted by breach of the principle of non-
discrimination.

NON REFOULEMENT
Although non-refoulement is not as sweeping as the right of asylum, it provides an asylum-
seeker with at least a temporary refuge and thus partial or de facto asylum. The principle of non-
refoulement is understood in international law as the duty of a state not to return a person to a
place of persecution. Professor Grahl Madsen notes that the duty of non-refoulement was first
imposed in Article 3(2) of the Convention relating to the International Status of Refugees': "Each
of the Contracting Parties undertakes, in all cases, not to return refugees across the frontiers of
their country of origin."13

Today, binding and non-binding international, regional, and municipal instruments provide for
the principle of non-refoulement.91 Article 33(1) of the 1951 Convention relating to the Status
of Refugees (entitled Prohibition of Expulsion or Return) provides that, no Contracting State
shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened. Article 42(1) of the Convention specifically
designates Article 33 as one of the articles to which a state may not make reservations. It must be
noted, however, that the Convention is not universal but only binds those 110 states that are
parties to it. Moreover, the duty of non-refoulement contained in Article 33(1) exists only with
respect to persons determined to be refugees under the Convention. Additionally, Article 33(1)
as written provides no right of admission for the purpose of seeking asylum.14

Article I (1) of the Protocol relating to the Status of Refugees incorporates Articles 2 through 34
of the Convention thus making the duty of non-refoulement expressed in article 33(1) of the
Convention binding on states parties to the Protocol. The Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment also prohibits refoulement.6 Article 3(1)
stipulates: “No State Party shall expel, return ('refouler') or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being subjected
to torture.”

13
ATLE GRAHL-MADSEN, TERRITORIAL ASYLUM 50 (1980).
14
ATLE GRAHL-MADSEN, TERRITORIAL ASYLUM 50 (1980).
Under international law, states have a right to grant asylum and a duty not to prevent those who
wish to emigrate or seek asylum elsewhere from doing so. States parties to one or more
international or regional treaties that prohibit refoulement also have a duty under such
instruments not to return protected persons to states in which they would face persecution.
Additionally, customary international law may impose a duty of non-refoulement upon states,
although this principle is not, at present, settled law. On the other hand, under international law,
individuals have an implied right to seek asylum.

The duty of a state not to return a person to a place where he would face persecution is presently
the closest that an individual comes to a right to asylum in international law. Yet even in the best
case with respect to non-refoulement a case where, pursuant to an international or a regional
multilateral treaty, a state is obliged not to return a person to a place where he would suffer
persecution-the state has no express duty to allow an asylum seeker to enter its territory. This
position was recently confirmed by the U.S. Supreme Court in the case of Sale v. Haitian Centers
Council15 Sale held that the non-refoulement provision of the Refugee Convention/Protocol does
not apply extraterritorially. This interpretation allows a state to turn away asylum seekers not yet
in its territory even if these people would face persecution elsewhere. Sale’s interpretation is the
primary threat to the principle of non-refoulement. For if there is no right of an individual to
admission, the individual's implied right to even an imperfect asylum (by virtue of non-
refoulement) is illusory. Advocates wishing to insist upon the right of asylum should thus first
insist upon the right of admission.

In a surprisingly bold move, the European Union recently asked the United Nations to green light
the use of force against boats containing “smuggled” immigrants on the Mediterranean Sea. This
disturbing news has been met with a wave of protest from advocates and scholars alike, who
deplore the E.U.’s plan because it denies these immigrants their fundamental rights. Many have
been left wondering, what is the legal basis for the E.U.’s actions? And could the United Nations
conceivably approve such a plan? The answer to these questions may lie in the gray-area that
exists in between the right to seek asylum in Article 14 of the Universal Declaration of Human
Rights and the principle of non-refoulement as stated in Article 33 of the 1951 Refugee
Convention.

15
113 S. Ct. 2549 (1993).
ASYLUM: AN IMPLIED RIGHT?
Among academics, there is some general support for the notion of an implied right to seek
asylum. After all, the right to seek asylum does naturally seem to be implied by purpose of the
Convention itself. Why would a country otherwise bind itself to the Convention if it intended to
deny individuals the ability to seek asylum? Consequently, some commentators argue that states
should not be allowed to thwart the ability to lodge an asylum claim.16

Professor Guy Goodwin-Gill distinguishes the “right of asylum” and “the right to seek asylum”
when he argues that states have no obligation to grant individuals the “right of asylum,” yet he
mentions that states cannot obstruct an individual’s “right to seek asylum.”He does not cite to a
codified right to seek asylum, but rather implies this right from the principle of non-refoulement.
Additionally, Professor James Hathaway argues that the Refugee Convention was “predicated on
the ability to invoke rights of protection,” and thus implies that there is a right to seek asylum
and to be heard.17 Neither, however, points to specific or explicit legal documents that obligate a
state party to allow individuals to seek asylum.

Nonetheless, the travaux préparatoires of the UDHR does lend some credence to the theory of an
implied right to be heard. Comments made by the delegate of Britain revealed that he might have
recognized a right to seek asylum and have one’s claim heard. The delegate argued that the
UDHR should not include the words “to be granted asylum,” and proffered the vaguer phrase,
“to enjoy.” He argued that, “to be granted” implied an individual right enforceable against the
state, which would violate the principle of sovereignty. Yet he did acknowledge a, “right of
asylum to which persecuted persons could have recourse,” and “that the exercise of that right
could not be penalized.”18 By endorsing this “right of asylum” he seemed to endorse an
individual’s right to seek asylum and not be punished for doing so.

Other delegates to the UDHR also acknowledged an implied right to be heard. The French
delegate, for example, believed in a right to seek asylum and argued it was a mistake to
“recognize the individual’s right to seek asylum” without imposing a correlative duty on states to
grant asylum.19 It is implied that the French delegate believed states were obligated to, in the

16
Guy Goodwin-Gill, The Refugee in International Law 358 (3d ed. 2007).
17
Guy Goodwin-Gill, The Refugee in International Law 358 (3d ed. 2007).
18
Id.
19
Id.
very least, listen to asylum claims. Again, however, the legal source of this obligation was
unacknowledged.

RECOMMENDATIONS
Borders closed to arriving aliens do not stem the refugee flight, they merely direct the flow of
refugees elsewhere."This creates hardship for states and asylum-seekers alike. The states with
the least prophylactic admission and asylum policies are forced to bear the burden of refugee
care while the refugees are forced to "orbit" among states seeking the one that will offer them
refuge. Closed borders, rejections, push-offs, and the like are not solutions that the world
community should tolerate First, these tactics should be rejected because they unjustly burden
some members of the world community, upset relationships among states, and internally
destabilize those states still admitting refugees. Second, closed borders, rejections, and push-offs
should not be tolerated because they are not a humane answer to a call for refuge. At the same
time, it must be recognized that in the exercise of their sovereignty and of their police powers,
states have a legitimate interest in the control of their borders and in the maintenance of internal
safety, two areas affected by the arrival of aliens. Moreover, the abuse of the institution of
asylum for immigration purposes coupled with the widespread perception of such abuse has
given voice to calls for closing borders. By admitting into their territories those seeking refuge
for the purpose of assessing their risk of persecution, individual states would answer both the
needs of the individuals and of the world community. On the other hand, states should not feel
compelled to offer to asylum-seekers anything more than what is necessary to protect them from
persecution. Finally, individuals legitimately needing refuge should receive such only for as long
as necessary to ensure that they will not be exposed to the risk of persecution in their home
countries.

In recognizing that closed borders, rejections, and push-offs are not a solution to the global issue
of refugee flight, we can focus on making the admission policies of individual states more open:
(i) to minimize the risk of harm to those in risk of persecution; (ii) to avoid the problem of
"refugees in orbit;" (iii) to spread the responsibility of care for individuals in need of protection
from persecution throughout the world community of states; and (iv) to avoid the destabilization
of those states that still admit asylum-seekers by forcing upon them disproportionately large
groups of aliens.