Asylum

Meaning and Definition

Asylum means shelter and active protection extended to a political refugee from another State by a State
which admits him on his request.

Asylum involves following two elements:-

1) A shelter which is more than a temporary refugee; and

2) A degree of active protection on the part of the authorities which have control over the territory of
Asylum.

The institute of International Law has defined Asylum as "the protection which a State grants on its
territory or in some of her place under the control of certain of it's organs to a person who comes to
seek it."

Right to Asylum

According to Article 14 of the Universal Declaration of Human Rights:

"Every one has a right to seek and enjoy in other countries Asylum from prosecution."

It may however, be noted that the Declaration simply recognises the right of Asylum, it doesn't grant
right to receive Asylum.

The so-called right of Asylum is probably nothing but the competence of every State to allow a
prosecuted alien to enter and to remain on, it's territory under it's protection.

In 1967, United Nations Declaration on Territorial Asylum was unanimously adopted by the General
Assembly. Among it's most important provisions, it called on Governments to refrain from measures
such as rejection at the frontier of persons seeking Asylum.

However being a declaration, it lacked binding force.

Thus although everyone has a right to seek Asylum yet there is no corresponding duty on States to Grant
Asylum.
Types of Asylum

Asylum may be classified into two categories:

1) Territorial; and

2) Extra-territorial.

In the Asylum Case (Colombia v. Peru), 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 refugee.
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. Such a derogation from territorial sovereignty cannot be recognised unless it's legal basis is
established in such particular case."

the differences between the principles applying to the two kinds of Asylum flow from the fact that the
power to grant territorial Asylum is an incident of territorial sovereignty itself, whereas the granting of
Extra-territorial Asylum is rather a derogation from the sovereignty of the territorial State in so far that
State is required to acquiesce in fugitves from its authorites enjoying protection from apprehension.

Territorial Asylum

Territorial Asylum is granted by a State in its own territory and is considered as an attribute of the
territorial sovereignty of the State.

Article 1 of the Convention on Territorial Asylum adopted on 28th March 1945 at Caracas provided,
"Every State has right in the exercise of its sovereignty, to admit into its territory such persons as it seems
advisable without, through the exercise of the right, giving rise to complaint by any other State."
Also Article 1 of the Draft Declaration of Asylum as adopted by the United Nations Human Rights
Commission, provided: "Asylum granted by a State in the exercise of its sovereignty, to persons entitled
to invoke Article 14 of the Universal Declaration of Human Rights, shall be respected by all other States."

Article 3 of the said Draft Declaration further provided, "No one seeking or enjoying Asylum in
accordance with the Universal Declaration of Human Rights, should except for overriding reason of the
population, be subjected to measures such as rejection at the frontier, return or expulsion which would
result in compelling him to return to or remain in a territory if there is well founded fear of prosecution
endangering his life, physical integrity or liberty in that territory.

A State is free to grant Asylum to the people of other States but this freedom can be restricted or
regulated through treaties.