Asylum

                The word asylum is Latin and derived from the Greek word ‘Asylia’ which means inviolable place. 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.

Definition: 

                 According to Starke, the conception of asylum in International law involves two elements
1.Shelter, which is more than merely temporary refugee ; and 

2.A degree of active protection on the part of the authorities in control of the territory of asylum

               The Institute of International law, at its Bath session in September, 1950 defined the term asylum as under 

“Asylum 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.”

               The term asylum is used to describe a number of legal notions: the grant by the states of admission into their territory of refugees, the protection of refugees against return to a country in respect of which they fear persecution and non-extradition of political offenders.

                The above elements of asylum will show that extradition is the antithesis of territorial asylum. Asylum stops, as it were, where extradition begins.

According to Article 14 of the Universal declaration of Human Rights, adopted by the General Assembly of United Nations on 10 December 1948 –

  1.   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 from acts contrary to the purposes and principles of the United Nations.

Basis of Asylum: 

                 A State has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individuals found on its territory. Thus, the right of territorial asylum has been conferred to a state on the basis of its sovereignty over the territory. This right is exclusive in the sense that other states are excluded to exercise the jurisdiction over the same territory.

                 The draft Convention on territorial Asylum adopted by the General assembly in 1974 has recognized under Article. 1, that the grant of asylum is a sovereign right of a state. The territorial jurisdiction right extends, by application to the embassies, legations, vessels and aircrafts.

Reasons for Asylum:

A state grant grants asylum to a person because of many reasons:

1.It is granted to save a person from jurisdiction of local authorities on the ground that he will not get fair trial.

2.  A person may be granted asylum on humanitarian grounds, in order to protect political offenders against the violent and disorderly action of irresponsible section of the population.  

3. National security also plays an important role in granting asylum. The offender who may be a rebel today may become a ruler in future date. 

4. Although a State may grant asylum after taking into consideration of any of the above factors, State adopt a cautious approach before doing so because it normally affects the friendly relations of two states. e.g. when India granted asylum to Dalai Lama and other Tibetans, it resulted in 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.  

Is asylum right of a person?

                       It is said that a person has a right to get asylum in other states. Universal Declaration of Human Rights under article 14 says down that “everyone has right to seek and enjoy in other countries asylum from persecution.”  General assembly of the united nations unanimously adopted a resolution in 1967 a Declaration on Territorial asylum which provides that “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.”  A person can seek and enjoy asylum only when it is granted by a state. State has no such duty to grant asylum to a person. The right to grant asylum vests in the states. It is exercised on the basis of principle of territorial sovereignty.

Kinds/ Types of Asylum:

There are two types of Asylum are as follows:


A) Territorial Asylum; and

B) Extra-territorial Asylum



A) Territorial Asylum: 

                                Territorial Asylum is granted by a State on its Territory, it is called Territorial Asylum. The right to grant asylum by a State to a person on its own territory flows from the fact that every State exercises territorial sovereignty over all persons, on its territory to anyone. The grant of territorial asylum therefore depends upon the discretion of a State which is not under a legal obligation to grant asylum to fugitive, As no precise rules as to grant of territorial asylum. General Assembly call upon the International Law Commission in 1959 to undertake the codification of the principles and rules of international law relating to right of asylum. On 14th December 1967 General Assembly adopted Declaration of Territorial Asylum through the adoption of resolution. The declaration consists of a Preamble and four Articles dealing with the principles relating to the grant of refusal of asylum. This Declaration provides that the right to seek and enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crimes and crimes against humanity. Article 4 of the this Declaration provides that the State granting  asylum shall not permit persons who have received asylum to engage in the activities contrary to the purpose and principles of United Nations. From the above provisions of the declaration it is clear that State does not have absolute right to grant asylum. The grant of asylum is a part of which cannot be exercised in respect of International crimes including genocides.



Some examples of territorial Asylum -

1) Idi Amin has been given by Saudi Arabia.

2) Baby Dok have been given asylum by France.

3) Dawood Ibrahim mafia Don is given asylum by Dubai Government.

4) Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain.

5) Talisman Noreen a Bangladeshi writer for her novel Raja granted asylum by Sweden.

6) Tiger Menno, wanted in Bombay Bomb blast case, granted asylum by Pakistan.

7) Dalai Lama and his followers was granted asylum by government of India.


B) Extra-territorial Asylum -

                                      Active protection is given outside the territory not belonging to the state granting it. Thus when Asylum is granted by a State at places outside its own territory. It is called extra-territorial Asylum’. It usually describes to those cases in which a State refuses to surrender a person demanding who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial  borders or upon its diplomatic premises within foreign territories. Thus Asylum is given at legation, consular premises and warships are the instances of extra-territorial asylum.


1. Diplomatic Asylum / Asylum in Legation: 
 

        Since granting extra-territorial Asylum or diplomatic Asylum involves derogation from the sovereignty of the State, International law ordinarily does not recognize a right to grant asylum in the premises of legation. But asylum may be granted in the legation premises in the following exceptional cases.

1)  Individual who are physically in danger from violence.

2)  Where there is well established and binding local custom.

3) When there is a special treaty between territorial State and the state of Legation concern.
Asylum in consular premises -

2. The above principle also applies in the case of Grant of asylum in consular premises.

3. Asylum in the premises of international institution -

                          Though International Law does not recognize any rule regarding the grant of asylum in the premises of International institution, however, temporary Asylum may be granted in case of danger of imminent violation.

4. Asylum in Warship - 


                           There are conflicting views to grant of asylum in warship, but it is argued that Asylum may be granted to political offenders.

                            As far as an asylum Warship is concerned, it may be granted on the ground of humanity, in cases if extreme danger to the individual seeking it. Thus, right to grant asylum on Warship may be granted in the same way in the case of Legation and also subject to the operation of the same conditions.

5. Asylum in Merchant Vessels - 


                     Since merchant vessels do not enjoy immunity from local jurisdiction, they are not competent to Grant asylum to local offenders. Thus, 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. There is, therefore a rule that asylum is not granted on merchant vessels. However, State may grant asylum if they conclude a treaty to this effect.



6. Asylum in the premises of international Institutions:

                    Whether a person taking 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 lack of practice. However, a right to grant temporary refuge in an extreme case of danger from mob cannot be ruled out.

                    Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is necessary to establish legal basis in each particular case.