Meaning and Definition of Asylum: By asylum we mean 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 refuge, 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 its 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 night to seek and enjoy in other countries asylum from prosecution.” It may however be noted that the declaration simply recognizes the right of asylum, it does not 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 its territory under its protection. Types of Asylum-
(a) Territorial Asylum Types of Asylum
(6) Extra Territorial Asylum
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. On 28th March 1945 a Convention on Territorial Asylum was adopted at Caracas. Article 1 of the said convention provided, “Every state has right in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable without, through the exercise of the right, giving rise to complaint by any other state. A state is free to grant asylum to the people of other states but this freedom can be restricted or regulated through treaties.
Example of Dalai Lama and his Tibetan followers.
Example of Influx of refugees from Bangladesh
Extra-territorial or Diplomatic Asylum: Extra-territorial asylum is granted by the State outside its territory, e.g., its embassy or public vessels.
- Asylum in Foreign Embassies: International Law does not recognise a general right of a head of mission to grant asylum in the premises of the legation. In the Asylum case the International Court of Justice observed, “A decision to grant diplomatic asylum involved a derogation from the sovereignty of that-State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of that State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case.” (Colombia v. Peru) 1950-
Under international law, a general right of States to grant asylum in foreign legations is not conceded. Asylum may be granted in legation premises in the three exceptional cases-
- for a temporary period, to individuals who are physically in the danger from mob violence or in case of a fugitive who is in danger because of political corruption in the local State:
- Asylum may also be granted where there is a well-established long recognised and binding local custom; and
- Asylum may also be granted if there is a special treaty between the territorial State and the State of the legation concerned.
- Asylum in Consular Premises: The general principles relating to legation premises are also applicable to the grant of asylum in Consular premises.
- Asylum in the Premises of International Institutions: International law does not recognize any rule regarding the grant of asylum in the premises of International Institution. Temporary asylum may, however, be granted in case of danger of imminent violence.
- Asylum in War Ships : Some writers are of the view that the individuals, not being the members of the crew, who board the vessel to take refuge after committing a crime on shore, cannot be arrested by the local authorities and removed from the vessel in case the commander of the ship refuses to hand over the fugitive. On the other hand some other writers have expressed the view that such fugitives should be handed over to the local police.
- Asylum in Merchant Vessels: Merchant vessels do not enjoy immunity from the local jurisdiction and consequently asylum cannot be granted to local offenders in merchant vessels.
