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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

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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 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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Contents

1. Acknowledgments ii 2. Introduction 3. Research Methodology 2.1. Objectives 2.2. Literature review 2.3 Methodology 2.4 Questions vi 3.2. Hypothesis vii

3.3. Mode of Citation viii

3.4. Chapterisation ix

3.5. Scope of Study x

4. Types of Asylum 1

5.1. Extra Judicial Means of Settlement

5.2. Judicial Means of Settlement 5

5. Compulsive Means of Settlement 7

6. Conclusion 10

7. Bibliography

Chapter 1

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

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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 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.

Research Methodology

:

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

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Objectives

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.

Literature Review

Methodology

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 aasylum? 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

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Mode of Citation

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

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 with the help of Examples.

Chapter-2

Kinds Of asylum

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

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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

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.

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.

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.

Asylum in the premises of International Institutions -There 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.

4(starke, 2007 :476). 5

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Asylum on 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.

In the Asylum Case (Colombia vs. Peru)6 ,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

Chapter -3

International Instruments for Protection of refugees

6 ICJ Reports ( 1950), p. 266

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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”.

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

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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.

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.

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

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

 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 case7, 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.8 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.

Is asylum a Right of Person ?

7 ICJ Reports (1949) p.4 8 Ibid,p. 282

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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.9 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.10 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 Countries11 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.12

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.

9 Declaration on Territorial Asylum(General assembly Resolution 2312 XXII of December 14, 1967.

10 F. Morgensten, ”the Right of Asylum” BYIL vol.26(1949)p. 327

11 For i.e. Preamble of French Constitution of 1946; Article 10 of Italian Constitution of 1947; Article 16 of German Republic of 1949.

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