Refugee And Law Of Asylum

Refugees are human beings which are undergoing traumatic experiences. They are the workers and producers in transmission from one economic environment to another. They are the political person and find their definition in the political events that have set them in flight and they pose important questions about the sovereignty, human rights and the relationship between the states and between nations and international peace and order.[1]

The flight of people in the quest for refuge is as old as history and so are the inevitable sufferings of the uprooted and homeless. Forced by man’s inhumanity to man, to flee have ravaged lands of their birth and now they are in the search of dignified existence, following only one law: “Law of Survival”.[2] Fortunately, there has been a history of humanitarian initiatives to alleviate the plight of refugees and displaced persons. As long as man remains intolerant of his fellow men, the flight will continue to be the only alternative of the persecuted.

Those who are denied at home the essential liberties of life will pull of their roots and look elsewhere for freedom. They are the international refugees, fleeing from their country, where they fear or have suffered oppression.

The world now has turned shrunk and large-scale problems of refugees and displaced persons, minorities and war victims have come to the close attention of the international community. Wars and many other militaries and political conflicts have brought in their wake a countless number of uprooted, including millions of refugees in search of new homes. The emergence of new national states often entailing changing the regime and boundaries, the struggle for decolonization and reshaping of the whole areas have also brought about an endless stream of ‘Human Misery’.[3] The plight of refugees was a challenge to the consciences of public-spirited people in many countries. But by the end of the year 1920, it had become obvious, that the task of assisting the refugee beyond the capabilities of charitable organizations working on their own. So after the end of the First World War initiatives were taken in the form of organized international efforts under the inspiring impulsion of Fridtjof Nansen, the first League of Nations High commissioner for refugees. By the terms of Article 25 of the Covenant of the League of Nations, the members of the League were pledged to cooperate with Red Cross Organisations, having as their purpose the improvement of health, prevention of disease and the mitigation of sufferings all over the world. The League of Nations Mandate to Nansen for Russians expanded to Turkish refugees in the year 1922 and Americans in 1923. The European countries also tried to cope with the new realities through a series of minority treaties in the interwar years. The economic and political change around World War I resulted in refugees being perceived as a burden as well as a threat. Collective action was necessary because of the numbers involved. It was such a situation that the social category of the refugee and the International Refugee Regime began to evolve.

As Mr. Frank E. Krenz[4] observed that

“It was only after the Second World War that the question of international migration became recognised as one requiring an international solution. From this time onward the concept of ‘Freedom of Movement gained impetus, and rebellion took place against the supremacy of states sovereignty in matters relating to the release of subjects or the admission of aliens”.

After the end of the Second World War and the establishment of the United Nations, the international legal regime for the protection of the refugees was evolved and developed to cater primarily to the situation of the refugees displaced from their home countries by the war. The basic principle of refugee law is International Solidarity. It is clearly linked to the very first Article of the Universal Declaration of Human Rights 1948 which states that

“All Human Beings are born free and equal in the dignity and Rights. They are endowed with reason and conscience and should act towards one another in spirit of brotherhood.”

This is the principle of Solidarity which established that a refugee person is a person of concern to the international community. It is also the principle which establishes the obligation to extend refuge to those who are compelled to flee from the social order and violence and treat them in the manner befitting their dignity, feelings and consciousness. However when a refugee crosses over the state of asylum, whether for a temporary period or permanently, there can be no denial that he is a burden on this new state, since one State’s refugees are often another state’s undesirables. The concept of burden-sharing which plays important role in the protection of refugees is getting recognition by the international community. International Burden sharing of the kind that United Nations Human Rights Council,[5] through its assistance programmes, seeks to provide with support of donor countries and the cooperation of non-governmental organization and other international agencies.  [6]


A refugee has always been characterized by the rupture of the ties between the individual and authorities of the home countries.

People moving across the borders because of various reasons are often categorized either as economic migrants, voluntary migrants in search of better livelihood options or as political migrants forced to flee for their own safety. But refugee is a person who is outside the country of his/her origin or habitual residence for the fear of persecution for the reason of race, religion, nationality or political imbalance and is unwilling or unable to return back because of such fear. According to the oxford dictionary, the term “Refugee” was first applied to the Huguenots, victims of religious prosecution who fled to France after the revocation of the Edict of Nantes in 1695. Nevertheless, the concept of the “Refugee crisis” came only after 20th Century. Millions of the people are today forced to flee their homes as a result of systematic discrimination and conflict of various forms. According to United Nation Human Rights Council more than 25.2 million people of the world has been displaced from their place of origin in the past few years. The scale of challenges of forced displacement is increasing yearly. Thus people are in need for protection and assistance because circumstances compelled them to flee from their own countries to seek refuge elsewhere. Demographic trends, extreme poverty, drought and hunger have added impetus to the large-scale movement of population across national boundaries. Therefore such people are in the need of international protection and security and such thing cannot be debated. But the question is “How and by whom”.[7] The repercussion of this quest indicates the need of categorization. A concerted international effort based on the Fundamental principle of Humanity is necessary. The situation of refugees is one of the most pressing and urgent problems faced by the international community and refugee law has grown in recent years to be responded as a subject of global importance. However, according to the vantage point of the United Nations High Commissioner for Refugees[8], a basic distinction can be made between three categories of persons who move across national boundaries. First persons are defined as refugees under the Refugee Convention. The second category is of the asylum seekers justifiably fleeing their countries because of danger to life, liberty or human rights violations arising from wars and similar forms of armed conflict or upheaval and thus in the need of international protection. Third-person fleeing from natural disasters or similarly compelling circumstances not related to the need for international protection and granting of asylum. This category also includes economic migrants. The evolving world situation has unfortunately led to a growing number of persons in need of international protection.[9]


The law of asylum and refugee is two separate institutions but related to each other. Literally the word “asylum” means freedom from seizure. Asylum, in international law means protection granted by a state to a foreign citizen against his own state.[10] Generally, asylum is granted to a refugee (person outside from his home territory or if homeless to the person outside of his last habitual residence). The modern Magna carta i.e. Universal Declaration of Human Rights in 1948 apparently in article 14 states the right to seek and to enjoy asylum from persecution in other countries. After the second world war, when people migrated from Germany a number of states (Belgium, Great Britain and Ireland, India, Denmark and Iceland, Spain, France, Norway, and the Netherlands) agreed on the Convention concerning the Status of Refugees.[11] Article 14 of the UDHR came as a protector of the realm who was disowned by their country or who by themselves left their residence to avoid the persecution. Grounded on Article 14 the United Nations in 1951 adopted the United Nation convention relating to the status of refugees. The 1951 Convention, as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1st  January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage[12] still states denies asylum to seekers on the ground of security and Sovereignty. Although the 1967 Declaration on Territorial Asylum, affirms that the discretion of States in this regard is curtailed by the insertion of Article 3(1). This clause reads: ‘No person [entitled to invoke Article 14 of the UDHR] shall be subjected to such measures as rejection at the frontier or, if he [or she] has already entered the territory in which he [or she] seeks asylum, expulsion or compulsory return to any State where he [or she] may be subjected to persecution.’[13]   The Right of Asylum falls into three basic category: territorial, extra-territorial, and neutral. Territorial Asylum is granted to persons seeking asylum for political offences such as treason, desertion, sedition, and espionage. Whereas extra-territorial asylum is asylum granted in embassies, legations, consulates, warships, and merchant vessels in foreign territory and is thus granted within the territory of the state from which protection is sought. Neutral Asylum is employed by states exercising neutrality during a war to offer asylum within its territory to troops of belligerent states, provided that the troops submit to internment for the duration of the war.[14]  In International law asylum has been viewed as a right of a state rather than of the individual. It follows from this that the state has exclusive right over its territory and subjects of its territory.[15] The State cannot own the individuals within its territory they can leave their own country and can seek as a right asylum in any other state. This follows from article 13 of the UDHR everyone has the right to leave any country, including his own similarly International Covenant on Civil and Political Rights proclaims in article 12(2) everyone shall be free to leave any country, including his Own. The principal of non-refoulement, a cornerstone of international refugee law, protects a person from deportation to a country where s/he is likely to face persecution.[16] Although non-refoulment is not as sweeping as the right of asylum, it provides an asylum-seeker with at least a temporary refuge and thus partial or de facto asylum.[17] Today, binding and non-binding international, regional, and municipal instruments provide for the principle of non-refoulement. Article 33(1) of the 1951 Convention relating to the Status of Refugees provides that, “no Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened.”‘ Article 42(1) of the Convention specifically designates Article 33 as one of the articles to which a state may not make reservations.

UNHCR – United Nations High Commissioner for Refugees an international apex organization[18] is working for refugees, to face the problem of refugees, it deals with and implements several actions through and by compelling inter and intra-national institutions and governments to recognize the full dimensions of the problem of displacement, and response to the needs of the uprooted. But, what required is a serious attempt to resolve the underlying problems of refugees and resulted in consequences; stressing the need to assess protection in the context of human needs and analysis of the international protection provisions and the role and mandates of the international organizations concerned with protection; guiding to find ways to strengthen the enforcement of existing laws of protection; and encouraging new initiatives to enable the inter and intra national community to respond in a coherent manner to solve the humanitarian problems of displacement (like right to justice, right to health, right to basic needs, and thus, right to live) in today’s world.[19]


International refugee law rests on a humanitarian premise. It is a premise tragically inadequate for our time, but one, which remains a terra incognita despite the frequency and enormity of contemporary refugee crises. The problem of the refugee is today profoundly different. In the face of dramatically and cataclysmically changed social and economic conditions, States felt obliged to abandon the centuries-old practice of permitting the free immigration of persons fleeing threatening circumstances in their home countries. The problem of the refugee, by its very nature, concerns the relations between states because it involves the movement of persons between states. The perspective of state-to-state relations, not the relation between the individual and the state, becomes critical for the mitigation or solution of refugee crises. The role of the UNHCR from a passive facilitator to that of active promoter has emerged in view of the complex refugee situation, the demands of the international community, overburdened host countries and in certain situations, the refugees themselves due to miserable life in the camps in the host countries. Its role as an active promoter has evolved over time and the international community has accepted it and now there is no possibility of going back. Refugee repatriation as a concept and process has evolved over the years and helped in finding durable solution for millions of refugees. This is the solution, which needs to be pursued vigorously with the cooperation of all concerned. It will require intense involvement and commitment of the country of origin, the country of asylum and the international community. The international community has also to address the causes of the refugee flow and adopt a pro-active role to bring about peace and reconciliation. Adequate and timely reintegration assistance plays a very important role in the successful repatriation and therefore, should get the due attention of the international community.

[1] Jacques Vernant, “The Refugee in the Post-war World” – 1953. George Allen and Unwin Ltd., p. 13 (London).

[2] J .N. Saxena, “Problems of Refugees in the Developing Countries and the Need for International Burden Sharing”, International Law in Transition, Essays in Memory of Judge Nagendra Singh, Lancers Book,

New Delhi, 1992, P. 95.

[3] Sadruddin Aga Khan, “Legal Problems Relating to Refugees And Displaced Persons”, Recueil Des Cours, Collected Courses of the Hague Academy of International Law, 1976, I, P. 293.

[4] Frank E. Krenz, “The Refugee as a subject of International Law”, International and Comp. Law Quarterly, Vol. 15, 1966, P. 90.

[5] United Nations High Commissioner for Refugees, UNHCR Global Trends 2010. Available at (accessed on 1/07/2018)

[6] Ian Browalie, “Principles of Public International Law”, 3 rd edition, 1979, PP. 49-50.

[7] Nash, Allen. E., ed., Human Rights and the Protection of Refugees under International Law, The Institute for Research on Public Policy (IRPP), Canada, 1988, p.29.

[8] Goodwin-Gill, G.S., “Different types of Forced Migration Movements as an International and National Problem”, Paper presented on 1988 Fulbright Conference: The Uprooted, Forced Migration in the Post War Era, Lund, 1988, p.10.

[9] Barnett, Laura., “Global Governance and the Evolution of the International Refugee Regime”, International Journal of Refugee Law, Vol 14. No. 2/3, Oxford University Press, 2002, pp.238-239.

[10] George J. Andreopoulos



[13] ALICE EDWARDS, Human Rights, Refugees, and The Right ‘To Enjoy’ Asylum

[14]  Supra note 18

[15] Felice Morgenstern, The Right of Asylum, 1949 BRrr. Y.B. INT’L L. 327, 327

[16] Roshni Shanker,



[18] V.T. Patil & P.R. Trivedi, “Refugees and Human Rights”, Authors press (Indian Institute of Human Rights), 2000, p. 268.

[19] Manik Chakrabart)-, “Human Rights and Refugees,” Deep & Deep Publication Pvt. Ltd., 1998, p. 26.

Also Read: Juvenile Justice System/Analytical Study Of Inhumanity Behind The Bars/Compensatory Jurisprudence For Victims/Rule Of Law Under Indian Constitution/Police Accountability In a Democratic Society

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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