PUBLIC INTERNATIONAL

LAW

BY –
SURBHI WADHWA
Assistant Professor (Law)
Jiwaji University,
Gwalior
ASYLUM: MEANING, TYPES,
and RATIONALE

 Asylum is a Latin word and it derives its

origin from a Greek word “Asylia”
meaning inviolable place.
 The term asylum in common parlance
means giving protection and immunity by
a state to an individual from their native
country.
 In day to day conversation, the term asylum
is used interchangeably with the term
refugee, there is difference between the two
procedurally where a person who is still
overseas seeks protection from a nation
when given patronage after reaching there is
given the title of a refugee whereas in asylum
the person seeks the protection from a
nation after reaching there and hence is
known as asylee or asylum seeker.
 Asylum is interpreted as a place of
protection or refuge for a fugitive where
he/she is given protection from trial and
pursuit from their home country or to
provide protection to a foreign citizen by
a state against his own government.
 The main purpose of asylum is to give
shelter to those who have well-rounded
fear in their home countries of
persecution.
 The Universal Declaration of Human Rights
under article 14 (1), provides that “Everyone
has the right to seek and to enjoy in other
countries asylum from persecution”.
 The idea of Asylum remains that of personal
immunity from authoritative steps of a
decision maker than that of jurisdictional
authority under whose power it falls. There
are mainly two forms of Asylum:
(1) Territorial Asylum:
 It is granted in the territorial boundary of
a state providing asylum.
 Every sovereign state has the right to
control and maintain jurisdiction on its
territory, hence the decision to extradite
someone or give them asylum is totally
under its discretion.
 Thus a state has territorial sovereignty
over all its subjects and aliens.
 This form of asylum is mainly given to
people who have been accused of political
offenses like sedition, treason, and
espionage in their home country.
 Territorial asylum is based mainly on the
national law of the sovereign.
(2) Extra-territorial Asylum:
 This form of asylum is usually granted by
a state beyond its state territory and
usually at places which are not a part of
its physical territory.
 In such case, a state providing asylum in
its embassy established in a foreign state
is called Diplomatic Asylum.
 Asylum may also be granted to asylee in
Warships because they are exempted
from the jurisdiction of the foreign state
in whose water it is operating.
 Such warships are under the patronage of
the Flag state.
 The same is not the case with merchant‟s
vessels as they are not immune to the
provisions of international law.
 Hence, Extra-territorial Asylum is based
on the framework of International Law
Conventions.
 The contemporary reasoning or rationale
behind asylum must be understood via
Rationae Materiae (Jurisdiction over
subject matter) and Rationae Personae
(Jurisdiction over a person).
 A sovereign state has the right to exclude
the involvement or interference by
another sovereign over its territory.
 This principle of sovereignty forms the
basis for Territorial Asylum and by the
very nature of this principle, it finds its
extension to consulates, embassies,
vessels, aircrafts belonging to the
sovereign state.
 In recent times, we have seen high profile
individuals like Julian Assange and Edward
Snowden seeking asylum under Ecuador and
Russia respectively. In case if Julian Assange,
the founder of WikiLeaks organization, he
sought extraterritorial asylum under
Ecuadorian Embassy after his extradition
was approved by the UK to Sweden.
 Whereas, Edward Snowden after exposing
NSA illegal spying program sought refuge
under territorial asylum after entering the
territory of Russia.
 Rationae Personae explains that certain
individuals due to immunity granted to
them due to their position or capacity, are
not under the jurisdictional control of a
state which would otherwise have
exercised jurisdiction over them due to
territorial sovereignty.
 This form of special immunity is applicable
to Diplomats, Heads of State, government
officials on a certain mission etc.
LEGAL STATUS OF ASYLUM:
NATIONAL AND
INTERNATIONAL LEVEL
 National and International law are the
only two forms which support and govern
the practice of Asylum. India which is
home to one of the largest refugee
population in South Asia has no specific
law dealing with the issue of asylum and is
yet to enact one.
 Refugee and asylum seekers in India are
subject to various non-specific laws like The
Registration of Foreigners Act, 1939, The
Foreigners Act, 1946, Foreigners Order,
1948, and Passport Act, 1920.
 There is no mention of the term „refugee‟ in
any of the National laws and asylum seeker
and refugees in India are subject to the
definition of „Foreigner‟ as a person who is
not a citizen of India as per the laws
mentioned above.
 These laws are used by the Indian
government officials in order to deal with
the intricacies arising out of the entry of
refugees and asylum seekers in our
country. Since there is no specific asylum
policy in India, the government grants
asylum on a case-to-case basis.
 Congress MP Shashi Tharoor in the year
2015 introduced the Asylum Bill, 2015
which aimed to provide a legal basis to
the issue of asylum in India. The bill is still
pending and is yet to be taken up by the
parliamentarians for consideration and
evaluation.
 In the International sphere, the body of
laws governing Asylum are the 1951
United Nations Refugee Convention
signed in Geneva and supplemented by its
1967 New York Protocol.
 The Geneva Convention along with the
New York Protocol is considered as the
Cornerstone of the International legal
regime towards the protection and
security of Refugees.
 The Convention Relating to the Status of
Refugees, or 1951 Refugee Convention, is
a UN treaty defining who a refugee is and
sets out rights for the asylum seekers and
the duties of the nation‟s granting it.
 Overall this treaty governs how states
allowing asylum seeker and refugees in
their territory should treat these people.
 India is not a signatory to the 1951
Refugee Convention and its 1967
Protocol. Asylum is considered an
International practice based on Human
Rights which take the shape as a
customary law with time because once it
is found in some of the practices of the
state without any legal basis, it creates an
international obligation on the state to
uphold this customary practice.
CORRELATION BETWEEN
EXTRADITION AND ASYLUM
 Extradition is mainly the surrendering of a
fugitive by one state to another for the
intention of criminal prosecution.
 This is a way of providing legal assistance
between two sovereign states on the
basis of some bilateral treaty or ad hoc
agreement.
 Asylum, on the other hand, is about
offering protection to those at risk of the
legal framework operating in their home
country.
 It is at times said that asylum ends where
extradition initiates. Both of them are not
identical and have procedural and
functional differences which have evolved
with time.
 Extradition aims at securing criminal
justice and denying safe haven to fugitive
leading to a stable transnational criminal
cooperation between the sovereign
states.
 Whereas Asylum seeks to provide a safe
and secure living for individuals on the
run from their home country in order to
avoid political persecution.
 Granting asylum is clearly distinguished
from the order to refuse extradition even
though the two can be intertwined at
times because there can arise two
possibilities where a person‟s extradition
might be sought when they are an asylee
or they may apply for asylum at a time
when they are being asked to extradite by
their home country.
 Any extradition request made to a state for
an asylum seeker must be in compliance
with the principle of non-refoulement in
International law enshrined under article 33
of the 1951 Geneva Convention.
 The decision to extradite is left with the
judicial authorities and the issue of asylum is
dealt by the executive decision on practical
and political grounds most of the times.
 These concepts are conflicting in nature
and are not mirror image of one another
which strive for their different goals and
ideals.
 A request for asylum cannot be
considered if there is an extradition case
pending and the court of law, would not
hear extradition case against an individual
granted asylum in their country.