ASYLUM AND ITS TYPES

Asylum Introduction:

The word “asylum” originates from the ancient Greek concept of “asylia,” meaning “sacred space” or “place of refuge.” It empowers nations to grant refuge and protection to individuals on their own soil, even when another state seeks their surrender. This signifies a crucial legal concept in international law, offering protection and shelter to individuals fleeing persecution in their home countries.

This article delves into the complexities of asylum, dissecting its core elements, diverse types, and critical significance in the contemporary world. It is specifically tailored for LLB students gearing up for their first semester exams, providing concise and exam-oriented insights to help them craft impactful, point-scoring answers.

What is Asylum?

In simple terms, asylum is the legal protection granted by a country to individuals who face harm in their homelands due to war, conflict, or well-founded fear of persecution. Whether escaping violence, discrimination, or political turmoil, those seeking shelter hope for a chance to rebuild their lives in safety.

Key Elements of Asylum:

In international law, asylum refers to the act of a state providing shelter and protection to individuals who face a well-founded fear of harm in their home country. This protection involves two key elements:

1. Shelter: This extends beyond mere temporary refuge, offering a safe haven for individuals to rebuild their lives.
2. Protection: The territorial state provides a level of security and support, ensuring the asylee’s safety and well-being.

Who is an Asylum Seeker?

An individual seeking asylum, known as an “asylee,” must meet specific criteria to be granted protection. These criteria are typically based on international refugee law and the 1951 Refugee Convention.

Types of Asylum:

Territorial asylum

Territorial shelter grants individuals fleeing persecution a safe haven within the borders of a welcoming state. This fundamental right, rooted in state sovereignty, allows countries to offer protection as an exception to extradition. Here are some notable examples:

• The Dalai Lama and his followers: In 1955, India granted territorial shelter to the Tibetan spiritual leader and his community escaping Chinese persecution.
• Salman Rushdie: Facing threats over his novel “The Satanic Verses,” the author found refuge in the United Kingdom.

Extra-territorial asylum

Extra-territorial asylum offers a unique form of protection, granting refuge beyond the borders of the state providing it. Unlike traditional shelter within a country’s territory, this type of protection extends to designated locations outside the state’s jurisdiction, such as:

• Embassies: Often the first point of contact for shelter seekers, embassies provide a safe haven within the territory of a foreign country.
• Consular Premises: Similar to embassies, consulates offer shelter in a smaller, more focused diplomatic setting.
• International Headquarters: In some cases, international organizations like the United Nations may offer temporary shelter within their headquarters.

EXAMPLE:

Say you’re facing danger in Syria and desperately need to escape. You rush to the US Embassy in Damascus, hoping they’ll grant you shelter. If they do, that’s extra-territorial asylum in action! You’ve found a temporary haven within a piece of US soil, even though you’re still physically in Syria.

Asylum in Warships

Warships are considered “floating pieces of their home country,” even when they’re in foreign waters. This means they have special rights and immunities, like being exempt from local laws. While granting shelter on warships isn’t routine, it can happen under certain circumstances.

In 1928 and 1954, international agreements recognized the right of warships to offer asylum to political refugees. However, this right is not absolute and comes with careful considerations.

Asylum in Merchant Vessels

The legal status of shelter seekers aboard merchant vessels, unlike those on warships, presents a complex intersection of international law and territorial sovereignty. Merchant vessels, being commercial ships, are not considered sovereign territory of their flag state and thus lack the immunity enjoyed by warships. Consequently, individuals seeking asylum aboard a merchant vessel within the territorial waters of another state are subject to the jurisdiction of that state. For example, suppose an individual commits a crime in France and seeks refuge aboard a British merchant vessel within French territorial waters. In that case, the French authorities have the right to apprehend the individual before the vessel departs or upon its arrival at another French port. However, the possibility of asylum arises in the presence of a bilateral treaty between the two states specifically addressing such situations.

Case laws: International Asylum Landmark: Colombia v. Peru

The “Asylum Case” (Colombia v. Peru) is a legal landmark. This International Court of Justice decision clarified state sovereignty in shelter matters and established a clear line between granting refuge for political reasons and harboring individuals accused of common crimes.

Motivation behind Asylum

1. Fleeing Persecution: This is the most common reason, where individuals fear harm due to their race, religion, nationality, political beliefs, or membership in a particular social group.
2. Humanitarian Grounds: Beyond legal frameworks, shelter can be granted on compassionate grounds, such as protecting individuals from war, conflict, or natural disasters.
3. National Security Interests: In rare instances, asylum seekers may possess valuable information crucial to national security, leading to their protection.

DISTINCTION BETWEEN EXTRADITION AND ASYLUM:-