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Asylum In International Law

INTRODUCTION

The term asylum generally means, the protection granted to a foreign citizen against his own country by the state. The person who is granted the asylum has no legal rights to demand it, and there is no obligation on the sheltering state to grant it. The term first derived from a Greek word named as asylon and it means freedom from seizure. There is no specific definition provided for the asylum seekers but it could be said that the asylum seekers are those who fled from their country where they were in fear of warship, conflict persecution and fear for their protection. They may be a part of a country to seek protection temporarily or permanently.

The person who is seeking asylum is named the asylee. The asylum seeker has to apply for asylum in a particular country in which they want to take asylum. Asylee lives in a detention camp till the application is pending. After the application is confirmed they get the status of the refugee and [1]the rights that come along with it. The asylum systems are in place to determine whether the person qualifies for international protection or not. However, during the mass movements of refugees, it is difficult to determine individuals qualification to become a refugee so these groups are also called as the prima facie refugees.

DEFINITIONS

PERSECUTION – The term persecution means an unfair or abusive treatment towards a person or group of people and forcing them to persecute because of their race, religion, ethnicity, sexual orientation, gender, etc.

REFUGEES – A refugee is a person who flees from his country to seek protection or who is unable to return to their home country because of the fear of force and persecution and flees and takes the protection in other countries.

EXTRADITION – The term extradition means when one jurisdiction delivers a person who is accused or convicted of a crime against another jurisdiction in the law of the other country.

Difference Between Refugees And Asylum Seekers

An asylum seeker is a person who seeks protection against their country in the other country. Who has not been recognised as a refugee by the other country? Every refugee is an asylum seeker but not every asylum seeker is a refugee.

Difference Between Migrant And Asylum Seekers

The term migrant usually means that a person or a group of people who have migrated to other country due to some common reasons like lack of employment and jobs or due to lack of citizenship attachment to their host country. The asylum seekers seeks the asylum in other country to get the protection from the persecution in its host country.

Categories Of The Asylum Seekers

There are basically three categories of asylum seekers, namely, territorial, extraterritorial, and neutral. The territorial asylum is that in which the asylum is granted within the territorial bounds of the state who is offering the asylum [2]and is an exception to the practice of extradition.  It is granted primarily for the person who is accused of political offences, like treason and desertion. Extraterritorial asylum is granted to a person outside the territory of the state.[3]It usually describes to those cases in which a State refuses to surrender a person demanding who is not upon its own physical territory but is upon one of its public ships lying in foreign territorial borders or upon its diplomatic premises within foreign territories.

The extraterritorial asylum seekers also known as the diplomatic asylum seekers, are those to whom the asylum is granted in embassies, legations and etc. the neutral asylum seekers are those troops of belligerent states, to whom the asylum is granted by the state who is acting neutral in the war and offers the asylum within its territory.

State’s Right To Grant The Asylum

According to article 1 of the draft convention on territorial asylum which is adopted by the general assembly in the year 1974, it states that the state has a sovereign right on granting asylum. The state has the freedom on granting territorial asylum to a person who was found within its territory.

When An Asylum Cannot Be Granted?

The person who has committed an offence against peace, war, humanity or was convicted for or engaged in an international crime or is involved against the principles of the united nations cannot be granted asylum.

Benefits Of Granting The Asylum

It saves the person from being persecuted and from the local trial or jurisdiction when the person is cannot get a fair trial. It saves the humanitarian factor and tries to provide protection and asylum to those who are forced to persecution by their home country.

Laws For The Asylum Seekers

1. The Universal Declaration Of Human Rights, in article 14 of the UDHR, provides a recognition to the right to enjoy and seek asylum in other countries from persecution. The UDHR doesn’t provide explicit right to asylum to the asylum seekers.

2. The Controlling Relating To The Status Of Refugees, 1951, And Its The Optional Protocol Relating To The Status Of The Refugees, 1967, states the definition of a refugee and the principle of non-refoulment. It states the rights provided to those who are granted refugee status. But the definition under the 1951 act is a dominant definition and doesn’t define and state that the asylum proceeding and refugee status is to be determined by the countries. This has lead to the different laws established by the states according to their resources and national security to provide the modern regime for the refugee laws.

3. The Un Convention Against Torture- Article 3 of the act provides and states that the state shall not expel and force the refouler to another state where the person is likely to get tortured and is subjected to persecution.

INDIAN ASYLUM SEEKER’S LAW

India is not a party to the refugee convention1951 or its protocol 1967. India has no particular laws regarding asylum seekers. India grants asylum to a lot of people from Afghanistan and Myanmar, though it has no legal framework for the refugees law.

In the absence of the legal framework for the asylum seekers and the refugees, the UNHCR, based in New Delhi, determines the refugee status from neighbouring countries like Afghanistan and Myanmar.

CASES

In the case of Colombia vs. Peru-the political leader of the Peru was accused of the crime of instigating a military rebellion. He was granted asylum at limo by the Colombian embassy and was not allowed to leave the country. The matter between Peru and Colombia was then taken to the international court of justice on the question of the right to diplomatic asylum. The court held that the diplomatic asylum is suppression of territorial sovereignty and should not be recognised unless the legal basis is established. The state granting the diplomatic asylum must prove its right to grant the diplomatic asylum and the other territorial state should respect it[4].

In the case of Assange vs. The Swedish prosecution authority – The Australian publisher is accused of rape and molestation by the Sweden government. The Sweden government demanded for extradition of the accused and the supreme court of Sweden ordered for the extradition. The accused was granted asylum by England in its embassy. The reason was it would breach the human rights of the accused if sent to Sweden. Sweden then dropped the charges against the accused. The Un also declared that the accused was detained arbitrarily. He was also sentenced for breaching the bail conditions and is also an accused against us for releasing the confidential documents of the united states of America, the USA also trying to extradite the accused to their country[5].

In the case of A and another vs. Minister for immigration and ethnic affairs

The Chinese people asked for asylum from Australia. The reason was that they are expecting their second child and it could lead them to force and persecution in China. China has adopted the one-child policy and they would be subjected to sterilization. The court of Australia did not recognise sterilisation as persecution but congress has recognised that the forced sterilization is persecution and amounts to persecution[6].

CONCLUSION

Asylum is a very important part of international law and is crucial topic when it comes to humanity. The rights of asylum seekers have become more important. The cases worldwide are stressful and leading inhuman behaviour. The laws for the refugees are established under International law but the asylum seeker’s law is not explicitly described under international law. There is a need to remove the concept of obscurity in the diplomatic asylum and the international human rights organisation should provide the asylum laws with prudent concepts and a stringent law is needed to implement the asylum protection.

[1] Diganth Raj Sehgal, Asylum – Territorial and Extra-Territorial,https://blog.ipleaders.in/asylum-territorial-extra-territorial/

[2]George J. Andreopoulos, Asylum, https://www.britannica.com/topic/asylum

[3]  srd law notes,https://www.srdlawnotes.com/2016/10/types-kinds-of-asylum in international law.html

[4]Diganth Raj Sehgal, Asylum – Territorial and Extra-Territorial,https://blog.ipleaders.in/asylum-territorial-extra-territorial/

[5]Diganth Raj Sehgal, Asylum – Territorial and Extra-Territorial,https://blog.ipleaders.in/asylum in international law-territorial-extra-territorial/

[6]Diganth Raj Sehgal, Asylum – Territorial and Extra-Territorial,https://blog.ipleaders.in/asylum-territorial-extra-territorial/

Also Read – Refugee And Law Of Asylum

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