Introduction:
Asylum is the protection given by a state to a foreign citizen who fled their home countries due to war, conflict, or harassment. The word asylum is derived from a Latin word ‘asylon’ which means independence from capture. The word asylum has not been defined anywhere but it can be understood as a shelter or protection provided by the state to a refugee from another state by admitting him on request. Asylum can be granted by the state to a refugee only when the state has sovereign control over the refugee.
In a few circumstances, the state can deny to extradite any refugee. The reasons for granting asylum to the refugees are to save a person from the jurisdiction of the local authority, granted on humanitarian ground and granted for the sake of national security. There are two types of asylum, territorial asylum and extra-territorial asylum.
Legal Perspective
A person can seek asylum in any country to protect himself from persecution or harassment. However, if a person is having any criminal record or has any non-political reasons the application for asylum can be canceled or denied.[1]
Refugees should not be returned back to their home countries if there is any danger to their lives based on their race, religion, membership of a social group, political opinion, or nationality.[2] As per the rules of the Geneva Convention (28 July 1951) and 1967’s protocol, the right to Asylum is guaranteed.[3] The right to seek and enjoy asylum in other countries and the right to return to their own country.[4]
Territorial Asylum
Territorial asylum is granted by a state in its own territory. Every state exercises its sovereignty over its people, therefore it has a right to grant asylum in its territory. The grant of territorial asylum is at the discretion of the state. On 14th December 1967, General Assembly adopted the 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 or 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, war crimes, and crimes against humanity.
Article 4 of 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 the United Nations. From the above provisions of the declaration, it is clear that the State does not have the absolute right to grant asylum. The grant of asylum is a part of which cannot be exercised in respect of International crimes including genocides. Examples of territorial asylum are Dawood Ibrahim mafia Don is given asylum by Dubai Government, Salman Rushdie for his controversial novel Satanic Verses given Asylum by Great Britain, Tiger Menon, wanted in Bombay Bomb blast case, granted asylum by Pakistan etc.
Extra-Territorial Asylum
Extra-Territorial asylum is granted by a state outside its own territory. The term extraterritorial or diplomatic asylum generally, depicts those cases in which a state refuses to surrender a person demanded who is not in its own territory but is in one of its public ships lying in overseas territorial waters or in its political premises within foreign land.
1. Diplomatic Asylum / Asylum in Legation
Extra–territorial asylum is granted when the law is exempted or is derogated from the sovereignty of the state. Grant of asylum is not permitted in the premises of embassy in international law except in the following cases:
- An individual who is in danger physically from aggression.
- Where there is well established and binding local custom.
- When there is a special treaty between the territorial State and the state of Legation concern.
2. Asylum in the premises of International Institution
International Law does not identify any law with regards to the grant of asylum in the premises of an International organization; nevertheless, short-term asylum can be approved in case where there is a violation about to happen. If a person taking shelter in the premises of an international institution or organization can be granted asylum with certainty in law.
3. Asylum in Warship
Asylum with regards to warship can be granted to political offenders. In case, if an individual is facing extreme danger asylum in a warship can be granted on the ground of humanity. The right to grant asylum in Warship can be approved in a similar manner as in the case of Legation and also in consideration of the operation of the same conditions.
4. Asylum in Merchant Vessels
Generally, merchant vessels do not have any protection from local jurisdictions therefore, they do not have any right to approve asylum for local wrongdoers. For example, a person commits a crime on a seashore and asks for asylum in a foreign merchant ship. Asylum cannot be granted to this person he may be under the control of local police either before the ship leaves the port or when it comes into another port of the same State. Therefore asylum cannot be granted in merchant vessels, however if there is any treaty between the states then it can be granted.
Case Law
Assange v. The Swedish Prosecution Authority
The recent case that has captured a lot of media attention is of Julian Assange. Assange is a founder of Wiki Leaks and also an Australian editor & publisher. The Sweden government accused him of rape and molestation. The Sweden government had filed for the extradition of Assange and the UK Supreme Court had ordered for his extradition to Sweden in May 2012. In June 2012, he was granted asylum in England at the Embassy of Ecuador.
The UN declared that he had been ‘arbitrarily detained’ by the Ecuador embassy. The reason given by Assange was that if he is to be sent to Sweden, his human rights would be violated. In 2015 Sweden dropped the charges against Assange. He was sentenced to 50 weeks jail for breaching bail conditions. After this, the United States of America has been trying to extradite him because he has released some confidential documents of the United States of America on his website which has been regarded as a criminal act by the United States of America.
Conclusion
Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him for his request. It has two main forms of asylum: territorial and extraterritorial asylum. The main difference between the two is in the territorial asylum the refugee is within the territory of the state and whereas in the case of extraterritorial the refugee is within the territory of the state where the offense was committed.
Extra-territorial asylum can be granted in exceptional cases and it is necessary to establish a legal basis in each particular case. Asylum is a very crucial part of International law. Presently, most of the countries are under confusion because of the increase in wars day-by-day in a few countries. It has become essential to make sure the implementation of the right to grant asylum with cautiousness and planning. India and many other countries must have clear asylum laws in the country by abiding with the principle of humanity.
References:
[1] Article 14 of UDHR
[2] Article 33(1) of 1951 Refugee Convention
[3] Article 18 of the Charter of Fundamental Rights of the European Union
[4] The Vienna Declaration and Programme of Action
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