INTERNATIONAL LAW(ASYLUM)

Md. Zakir HossainProfessor

University of ChittagongBangladesh.

Asylum is basically a sanctuary offered by one State to an individual seeking refuge from another State. Such individuals have typically committed political offences (at least in the eyes of the State granting asylum) and wish to escape persecution. For a long time, international law has distinguished between two forms of asylum – territorial (provided in the territory of the protective State) and extraterritorial or more commonly diplomatic (provided in other places under the control of the protective State, usually in diplomatic missions) asylum.

The concept of asylum in international law involves three elements. Firstly, the State admits the individual seeking refuge to its territory or other places underits control. Secondly, the State is prepared to provide a long-lasting sanctuary i.e. its more than mere temporary refuge. Thirdly, it involves a degree of active protection, i.e. the State authorities are taking appropriate steps to ensure actual protection of the particular individual. Hence, the granting of asylum is not an instantaneous act which terminates with the admission of an individual at a given moment, but continues as long as protection is provided.

Asylum means giving protection to an alien who is accused of committing offences of political nature. Asylum is the protection given to a person seeking it in a territory of another state. Asylum is the right of a sovereign state to grant shelter and protection to a foreigner and refuse his extradition. Persons genuinely seeking refuge from persecution are often referred as asylum seekers.Asylum is therefore a shelter which is more than a temporary refuge. A degree of active protection is integral to asylum.

According to Universal Declaration of Human Rights , "Everyone has a right to seek and enjoy in other countries asylum from protection." Asylum is closely connected with extradition and both are interdependent, where asylum stops extradition begins. Asylum is generally motivated by human consideration and involves an adjustment between the legal claims of state sovereignty and the demands of humanity.

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.

Three Faces of the Right of Asylum1. 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. 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.

Only a few international treaties provide for the right to asylum. It was recognized by the Convention on Political Asylum concluded at Montevideo in 1933 by the Seventh International Conference of American States. The Universal Declaration of Human Rights (hereinafter“UDHR”) provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” The Vienna Declaration on Human Rights and Programme of Action similarly reaffirmed the right to seek and to enjoy asylum in 1993.

However, the way in which the right to asylum is articulated in those instruments suggests that it is not meant to be a right of the individual to receive asylum, but rather a right of the state to grant it, that must be respected by other states. The Declaration on Territorial Asylum, provides that Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States.

2. The Right of an Individual to Seek Asylum. The second 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-à-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."

3. The Right of an Individual to be Granted Asylum. The third component 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.

Felice Morgenstern's view that, "[tihere can be nodoubt that the individual has no general 'right' of asylum against [the] state," is generally accepted to represent the status of an individual's right of asylum vis-d-vis the state of refuge. International and regional instruments dealing 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-d-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.' Professor Lauterpacht criticized the language of Article 14(1) for giving the individual a right to seek asylum without specifying whose duty it is to give effect to that right.

Similarly, with respect to the "enjoyment" of asylum in other countries postulated by Article 14(1), Professor Lauterpacht noted that since that provision was intended by its drafters merely to provide for the right of a state to grant asylum4 (an existing right of states) there was no need to include it in the Declaration.' The Declaration thus did not provide an innovation to existing international law with respect to an individual's right to receive asylum in a particular state.

Kinds of Asylum:-(1) Territorial Asylum: Territorial asylum is the one

granted by a state in its territory. Territorial asylum is not usually granted to ordinary criminals. It is designed and employed primarily for the protection of persons accused of political offences such as treason, desertion, sedition, religious refugees. Logically, this right has been associated with the right of States to refuse extradition of individuals present in their territory.

A well known case is Dalai Lama of Tibet.

This form of asylum presupposes that the individuals actually present in the territory of the State granting asylum, i.e. the individual has managed to leave the State which wants to exercise jurisdiction over that individual for alleged offences. Although it is possible that the individual seeks and the State grants asylum before the individual has reached the territory of that State, there are no guarantees that territorial asylum becomes a reality in such cases, e.g. the present host State does not allow the individual to travel to the State granting asylum.

The International Court of Justice has explained in Asylum case that the granting of territorial asylum is “normal exercise of the territorial sovereignty” because 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”. The right to grant territorial asylum can be derived also from the fundamental principle that the State has an exclusive right to exercise jurisdiction over individuals present in its territory (excluding individuals having jurisdictional immunity, e.g. diplomatic agents). The United Nations General Assembly has affirmed that the granting of asylum is a peaceful and humanitarian act, a normal exercise of state sovereignty, and that it should be respected byall other states

According to international law, the granting of territorial asylum is a right, not an obligation of States. Equally, it is not a subjective right of individuals, although the Universal Declaration of Human Rights claims that “everyone has the right to seek and to enjoy in other countries asylum from persecution”.However, this right is not confirmed in subsequent human rights treaties such as the International Covenant on Civil and Political Rights (1966) and European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) or its protocols, although they include the right to leave any country, including individual’s own country.

The current legal regulation for territorial asylum is found in the Convention relating to the Status of Refugees (1951) and its supplementary protocol (1967). The amended convention defines a refugee as a person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

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. But adds, states granting asylum shall not permit persons engaged in activities contrary to the purpose and principles of the U.N.

Extraterritorial AsylumThis is about providing sanctuary to individuals in the premises of diplomatic missions. But less conventionally, sanctuary has been offered also in military facilities and on board military vessels and aircraft. Extraterritorial or more commonly diplomatic asylum is problematic because, unlike in case of territorial asylum, the protected individual is still in the territory of his/her own country and therefore the protective State interferes with the sovereignty of another State.

Extra-territorial asylum, therefore, granted by a state not on its physical territory, but on its notional territory, like in a legation and consular premises and on warships is called the extra-territorial asylum.(i) 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.

(ii) 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.

(iii) 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 donot have immunity.

Nowadays, one cannot take seriously the argument that the premises of diplomatic mission form a part of the territory of the sending State, not the receiving State, and diplomatic asylum is still provided in the “territory” of the State granting asylum. The theory of extraterritoriality was formulated by Hugo Grotius in the 17 century in order to explain why diplomatic missions do not fall under the jurisdiction of the receiving State in a similar manner as everything else.

According to a fundamental rule of international law, States may not exercise their jurisdiction outside their territory, i.e. abroad, and because diplomatic missions are also “abroad”, States must refrain from exercising their jurisdiction in the premises of diplomatic missions. However, the International Law Commission, while drafting of the Vienna Convention on Diplomatic Relations (1961),rejected the theory of extraterritoriality because it is based on a legal fiction and does not reflect factual reality or modern understanding of diplomatic relations

This position has been confirmed by later court practice. For example, a British court had to decide whether a divorce in a foreign embassy in London was obtained outside the United Kingdom. In April 1970, an Egyptian Muslim husband asked his English Christian wife to the United Arab Republic embassy where he pronounced a Talaq divorce. But the wife contested the divorce because it took place in the United Kingdom, where such divorce is not legally valid and, in return, sought a divorce on the ground of cruelty. The court concurred with the wife, agreeing that foreign embassies are part of the territory of the receiving State although its jurisdiction in the premises of diplomatic missions is very limited

Therefore, people seeking shelter in diplomatic missions are still in the territory of receiving States and sending States are, as a result, interfering in their territorial sovereignty. This explains why States mostly reject the right to diplomatic asylum. The International Court of Justice has equally been cautious about diplomatic asylum due to its dangerous and offensive interference is the sovereignty of another 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.

Legal Position under International Law Victor Raul Haya de la Torre was the leader of the Peruvian political movement American People’s Revolutionary Alliance which was constantly in troubles with the government. When his movement revolted and lost a one day civil war on 3 October 1948, he sought refuge in the Columbian embassy. Columbia recognised Haya de la Torre as a political offender, but Peru refused to grant him safe passage to leave the country. To settle their dispute, the States turned to the International Court of Justice, giving the latter a great opportunity to clarify the position of international law on diplomatic asylum.

The Court delivered a cautious judgmentin Asylum case saying that (1) diplomatic asylum as a serious derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case and (2) when relying on customary international law, theprotective State must prove that it has a right to grant diplomatic asylum and theterritorial State has an obligation to respect diplomatic asylum.

Overall, the Court was sceptical that diplomatic asylum is a generally recognised concept of international law. Indeed, when it comes to the treaties concerning diplomatic asylum, there are only regional, Latin and Central American instruments, but no global treaties. If the States from other regions of the world provide exceptionally sanctuary in their diplomatic missions, they use other justification than diplomatic asylum, e.g. humanitarian concerns. Also, contemporary diplomatic law does not include, intentionally, the right to grant diplomatic asylum.But one thing is certain – no State is known to claim or to admit a sanctuary for common criminals. Diplomatic asylum is clearly confined to political offenders who hope to escape persecution by those in power and who cannotexpect a fair trial.

What is the difference between diplomatic, territorial and political asylums?Diplomatic asylum differs from territorial asylum in the place where is it requested. Diplomatic asylum is requested in diplomatic missions, while territorial asylum can be requested within the borders of the state that is asked to grant asylum. A few terms, such as political asylum, are used interchangeably for both diplomatic and territorial asylums.Is diplomatic asylum recognised by international law?No, the drafters of the 1961 Vienna Convention refused to introduce diplomatic asylum in spite of a strong request by Latin American countries. The only gesture was made in the Article 41, para 3, which stipulates:The premises of the mission must not be used in any manner incompatible with the functions of the missions as laid down in the present Convention or by other rules of general international law or by any special agreement in force between the sending and the receiving States.

The International Court of Justice (ICJ) did not recognise diplomatic asylum as legal concept in the 1950 Asylum case (Colombia/Peru). It is left to countries to regulate diplomatic asylum on an ad hoc basis. In the Assange asylum case, the UK does not have an international obligation to recognise diplomatic asylum granted by Ecuador.While it is not globally accepted as a legal concept, diplomatic asylum exists as regional law in Latin America. It has been developed since the nineteenth century with quite consistent practice and a high level of observation regardless of political conflicts among countries. The regional aspect of diplomatic asylum can be seen in the list of countries that signed and ratified the 1954 Caracas Convention on Diplomatic Asylum. It is only signed/ratified by Latin American countries, while other members of the Organisation of American States are not party to the convention (Caribbean countries, USA, and Canada).

In the Assange case, Ecuador cannot use this legal argument, since the UK does not accept diplomatic asylum. It could be only used in relations among Latin American countries.Moreover, since it is not protected by international law, the Assange case could be considered as a breach of the VCDR Article 4, para. 3, that specifies that the premises of the diplomatic mission should not be used in any manner incompatible with its functions.

How is Assange protected if diplomatic asylum is not recognised in international law?He is protected due to the inviolability of the Ecuadorian embassy, not because of his diplomatic asylum. Inviolability of the premises is granted by Article 22 of the VCDRDiplomatic asylum matters when it comes to his move from the Embassy to the foreign country. If diplomatic asylum was recognised by the UK, Assange could have been provided with free passage from the Embassy in London to Ecuador. For example, Article 12 of the 1954 Caracas Convention specifies free passage:Once diplomatic asylum has been granted, the state granting asylum may request that the asylee be allowed to depart for foreign territory, and the territorial state is under obligation to immediately grant the necessary guarantees.

How to deal with diplomatic asylum?

Since it is not legally regulated (except in Latin America), diplomatic asylum has to be addressed ad hoc through negotiations. Here are a few principles based on the Latin American asylum practice and current literature that should be used in deciding on diplomatic asylum1.Diplomatic asylum should be granted to persons politically prosecuted. Historically speaking, it has been the most contested part, including the Asylum case between Peru and Colombia. In the Assange case, it is the same dilemma: is he prosecuted for a sexual crime in Sweden (a common crime) or is Sweden used only as stop-over on his legal journey to the USA where he would be prosecuted for a political crime (WikiLeaks)? This is an ambiguity where the Swedish government has not provided a sufficient and explicit guarantee that he won’t be extradited to the USA.

2.Diplomatic asylum should be granted in extraordinary situations when human lives are at risk, such as anarchy, outbreak of civil war, a coup d’état. There was a long history of this type of diplomatic asylum during the Spanish Civil War and the Pinochet coup d’état in Chile.3.There is also a humanitarian element. The life of the asylum seeker should be endangered in order to receive asylum.