Asylum

The term ‘Asylum’ latin term derived from the Greek word “Asylia” which means inviolable place.

Asylum is the protection which a state gives on its territory or in some other place under the control of certain of its organs to a person who comes to seek it.

There is no specific definition of asylum but it can be understood as legal protection granted to the people who have fled their home countries due to warship, conflict  ,persecution or fear of persecution .

A person who seeks international asylum i.e. an asylum seeker is known as an asylee.

There are certain international convention and declaration which provides ‘RIGHT TO ASYLUM’. According to article 14 of Universal declaration of human rights (UDHR) mentioned that “ everyone has the rights to seek and to enjoy in other countries asylum from prosecution .”

“Any person who has a criminal record of anything which is not acceptable as per the principle of the united nations cannot seek asylum”

According to refuge Convention 1951, Article 33- Prohibition of expulsion or return (refoulement), Which states that: “No Contracting state Shall expel our return (refouler) a refugee in any manner whatsoever to the borders of country where his life or freedom would be threatened based on his race, religion nationality, membership of a particular Social group or political opinion.”

Types of Asylum

1. Territorial Asylum: When an asylum is granted by a state in its own territory, it is called territorial asylum and is considered an attribute of the state’s territorial sovereignty. For Example: If an Individual ‘A’ from Bangladesh comes to Nepal and applies for asylum due to the horrifying conditions in Bangladesh and apprehension of danger to his life. if the Nepal government grants the individual Asylum within the country itself . It is an example of territorial asylum.

• UN Resolution of the general Assembly on Asylum,1967 : According to the resolution of the General Assembly on Asylum 1967, the state shall do the following in granting asylum.

(a) When a person requests for asylum his request should not be rejected but when a large number of people request for asylum, it may be rejected on the basis of the national security of its own people.

(b) If state feels difficulty in granting asylum,then it must take appropriate measures.

(c) If Asylum is granted, it should be respected by other states.

• Tibetan Refugee after the 1959 Tibetan uprising many Tibetans fled to Nepal, where the government allowed them to settle and provided protection from prosecution. This reflects nepal’s commitment to offering asylum to those fleeing political oppression.

2. Extra Territorial asylum: When asylum is granted by a state at places outside its own territory is called extra-territorial asylum. Eg: in its Embassy or Public vessels e.t.c

Illustration: If ‘A’ from the USA approaches US embassy in Nepal for a grant of asylum due to imminent danger to his life. If US embassy grants the asylum, it becomes an example of extra-territorial asylum.

In such case, a state providing asylum in its embassy established in a foreign state is called Diplomatic asylum.

Example: In 2012, Julian Assange sought asylum in the Ecuadorian embassy in London to avoid extradition to Sweden and potentially the US. Ecuador granted him asylum, Citing concerns about human rights violations if he were extradited. (Extradition to Sweden for allegations of rape and sexual assault.)

Classification of extra-territorial or diplomatic asylum:

1. Asylum in legation: Where asylum is granted by a state within its embassy premises situated in a foreign country it is called asylum in legation. There is no general right to grant asylum in the premises of the legation. The International Court of Justice held that there is no general right to diplomatic asylum, However it can be granted in the following cases:

(a) It can be granted for temporary period.

(b) It can be granted where there is well established custom.

• Case laws: ( Related to Laws on diplomatic asylum )

Colombia vs Peru.1950

= In this case the ICJ observed that (a) Diplomatic asylum is the derogation of territorial sovereignty and it should not be recognized unless in each case a legal basis is established. (b) The state providing such a grant must prove that it has the right to grant diplomatic asylum and it should be respected by the territorial state.

2. International Institution: Asylum can be granted in an international institution, if there is the presence of such imminent danger.

#Rights and obligation of Asylum

(a). Rights: The right to seek asylum is a fundamental human right enshrined in international law. The right is based on the principle that individuals have the right to seek protection from prosecution and harm in another country. Asylum seekers are individual who have fled their own country due to fear of prosecution on the grounds of their race, religion, nationality, political opinion, or membership in a particular social group.

• Article 14 of the UDHR 1948 states ” Everyone has the right to seek and enjoy in other countries asylum from prosecution”.
• Similarly,1951 U.N convention relating to the status of refugees, elaborates upon these rights, The convention sets out certain basic rights of refugees that are necessary for the enjoyment of asylum.
• These include the right not to be returned to a place where they are at risk of persecution.
• It also includes the right not to be penalized for being in or entering a country without permission where this is necessary for them to seek and receive asylum.

(b). Obligation: The state have some obligation under international law to protect the right to seek asylum.

• Non-Refoulement: The principle of non refoulement prohibits states from returning asylum seekers to a country where they face prosecution or other serious harm. This principle is enshrined in Article 33 of the refugee convention.
• Access to asylum procedure: States are required to ensure that asylum seekers have access to fair and efficient asylum procedures. this includes ensuring that asylum seekers can enter the country to make their claim and that they are provided with legal assistance and interpretation services as needed.
• Non-Discrimination: The state must ensure that asylum seekers are not discriminated against based on their race, religion, nationality.