The Right of Asylum- Part II

In the first part of this article, I said that there are three aspects attached to the Right of Asylum.

1. The Right of a State to Grant Asylum.

2. The Right of an Individual to seek Asylum.

3. The Right of an Individual to be granted Asylum.

Let us discuss them in detail.

Right of a State to Grant Asylum

This emanates from a basic principle in the International law. Every sovereign state has exclusive control over its territory and the persons residing in it. Hence, every state has the right to deny or grant asylum[1].

Following are the international conventions and instruments that provide the right of a state to grant asylum.

1. The OAU Convention states that its members “shall use their best endeavours consistent with their respective legislations to receive refugees.”[2]
2. The OAS Convention on Territorial Asylum states that “every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without, through the exercise of this right, giving rise to complaint by any other State.”[3]
3. The Declaration on Territorial Asylum adopted by the U.N. General Assembly states that “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.”[4]
4. Apart from such conventions and regional instruments, many states have their own municipal laws providing for such a right.

 Right of an Individual to Seek Asylum

This right is not so hard to understand and is a well-established principle. It is mentioned in the following regional and international instruments.

1. This right is enshrined in several international and regional instruments. Article 13(2) of the Universal Declaration of Human Rights proclaims that, “everyone has the right to leave any country including his own.”[5]
2. Article 12 of the International Covenant on Civil and Political Rights states that “everyone shall be free to leave any country, including his own”.[6]
3. European Convention for the Protection of Human Rights and Fundamental Freedoms proclaims that, “everyone shall be free to leave any country, including his own.”[7]
4. The American Convention on Human Rights' stipulates in Article 22(2) that, “every person has the right to leave any country freely, including his own.”[8]
5. Article 68 of the U.N. Charter states that “the right to leave one's own country in pursuit of asylum is thus a right of the individual asylum-seekers, enforceable in certain situations.”[9]

 Right of an Individual to be granted Asylum

Renowned authorities on this subject like Grotius and Suarez have already recognized the right of asylum as a basic right of every individual. They also say that there is a corresponding duty upon the state to granny asylum. However, this view has not yet been accepted by various countries and International law.[10]

The basic instruments and conventions in this regard are as follows.

1. Article 14(1) of the Universal Declaration of Human Rights provides the right of an individual “to seek and to enjoy in other countries asylum from persecution”.[11]
2. Article 23 of the Vienna Declaration provided that “the World Conference on Human Rights reaffirms that everyone, without distinction of any kind, is entitled to the right to seek and to enjoy in other countries asylum from persecution”.[12]
3. Article I of the 1977 United Nations Conference on Territorial Asylum states that “each Contracting State, acting in the exercise of its sovereign rights, shall use its best endeavours in a humanitarian spirit to grant asylum in its territory to any person eligible for the benefits of this Convention.”[13]

Thus, I have mentioned the various aspects attached to the Right of Asylum. The next part of this article would provide for an in-depth analysis of some minute aspects attached to this right such as the Right of Admission, Applicability of Municipal Laws, The Principle of Non- Refoulement etc.

To be Continued....

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[1] Felice Morgenstern, The Right of Asylum, 1949 BRIT. Y.B. INTERNATIONAL LAW.

[2] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, September 10, 1969, article 11(1), 1001 U.N.T.S. 45, 48.

[3] Convention on Territorial Asylum, March 28, 1954, OEA/Ser.X/1, article 1.

[4] Declaration on Territorial Asylum, article 1(1), General Assembly Resolution 2312, U.N. GAOR, 22d Session, Supp. No. 16, at 81, U.N. Doc. A16912 (1967).

[5] Universal Declaration of Human Rights, article 14(1), G.A. Res. 217A (III), U.N. GAOR, 3d Session, at 71, U.N. Doc. A/810 (1948).

[6] International Covenant on Civil and Political Rights, G.A. Res. 2200(XXI), U.N. GAOR, 21st Session, 183d plen. mtg., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966).

[7] Article 2, Council of Europe Agreement No. 46, Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, September 16,1963,7 I.L.M. 978 (1968).

[8] American Convention on Human Rights, November 22, 1969, O.A.S. Off. Rec., OEAISer.KJXVI/1.1, Doe. 65 (Rev. 1), Corr. 2 (1970).

[9] U.N. ECOSOC Resolution 1503 (1970).

[10] See Stephen B. Young, Between Sovereigns: A Re-examination of the Refugee's Status, in TRANSNATIONAL LEGAL PROBLEMS OF REFUGEES 339,347 (Michigan Yearbook of International Legal Studies, edition, 1982).

[11] Universal Declaration of Human Rights, article 14(1), G.A. Res. 217A (III), U.N. GAOR, 3d Session, at 71, U.N. Doc. A/810 (1948).

[12] The Vienna Declaration and Programme of Action, June 25, 1993, in UNITED NATIONS, WORLD CONFERENCE ON HUMAN RIGHTS 36 (1993).

[13] See Paul Weis, The Draft United Nations Convention on Territorial Asylum, 1979 BRITAIN Y.B. INTERNATIONAL LAW 151,152.