To the Point

International asylum law sits at the intersection of state sovereignty and the imperative to protect human rights. This article delves into how international legal frameworks navigate these conflicting priorities, exploring the principles, key treaties, and case laws that shape the rights of asylum seekers and the obligations of states.

Use of Legal Jargon

• Asylum Seeker: An individual seeking international protection from persecution.
• Non-Refoulement: A principle that prohibits the return of individuals to a country where they may face serious threats to their life or freedom.
• Sovereignty: The authority of a state to govern itself.
• Refugee Convention: The 1951 Convention relating to the Status of Refugees.
• Jurisprudence: The theory or philosophy of law.
• Human Rights: Basic rights and freedoms to which all humans are entitled.
• Extradition: Sending back to a person to his home country or state discovery that he has committed a crime.
• Diplomatic: 

The Proof

International legal instruments and national legislation provide the foundation for asylum law. The 1951 Refugee Convention, its 1967 Protocol, and regional instruments such as the European Convention on Human Rights (ECHR) underscore the principle of non-refoulement and the protection of asylum seekers. According to the UNHCR, global displacement reached a record high with over 82 million people forcibly displaced in 2020, emphasizing the urgent need for robust asylum protections.

Abstract

This article examines the balancing act between state sovereignty and human rights in international asylum law. It analyzes key treaties, relevant case laws, and contemporary challenges, offering a comprehensive overview of how legal frameworks aim to protect asylum seekers while respecting state sovereignty. The discussion includes the principles of non-refoulement, case studies, and the role of international bodies in shaping asylum policies.

Detailed Article

Introduction

 Asylum is a Latin word but its origin derived from Greek word “Asliya” which means Inviolable place. Asylum recognize under Article 14(1) of Universal Declaration of Human Right passed on conviction on territorial Asylum, treaty adopted on 28 march 1954. It literally means providing shelter and protection on request and subject to control by a state to a political refugee of another state. 

In another word, if a person committed a crime and flat for another state to take shelter in another country. Such shelter and protection extended by foreign state is called Asylum. Asylum is closely related to Extradition and both are interdependent to each other where asylum stop extradition begin.

The protection of asylum seekers under international law reflects a fundamental commitment to human rights. However, this protection often clashes with state sovereignty, as nations assert their right to control their borders and immigration policies. This article explores the balance between these competing interests, examining international legal frameworks, principles, and case laws that define the rights of asylum seekers and the obligations of states.

Kind of Asylum: –

Asylum has mainly to form –

1. Territorial or Internal Asylum 

2.  Extra territorial or diplomatic Asylum

1. Territorial or Internal Asylum 

When state provide asylum to asylee with in the territory is called territorial Asylum. Every sovereign state has right to control and jurisdiction to his state, then provide asylum to someone is his discretionary power.

For example,

1.Dalailama and its followers were providing asylum in India in 1955 those people face atrocities in China from long time.

2. Dawood Ibrahim mafia Don provide asylum by Government of Dubai.

 2. Extra territorial or Diplomatic Asylum 

When state provide asylum to asylee to outside of the territory of its state usually in those places which is physically not a part of state like warship, International Headquarters, legation consular premises and its Embassy that form of Asylum is called Extra territorial or Diplomatic Asylum. This Asylum is not given to merchant ship because they are not exempt from the provision of international law.

There are different type of Extra territorial Asylum 

1 Diplomatic Asylum/Asylum in legation

2. Asylum in premises of international institution 

3. Asylum in Warship

4. Asylum in merchant vessel

1 Diplomatic Asylum/Asylum in legation 

Generally international law not provide right to asylum to asylee in legation but there is some exception cases 

1. if person physically in danger due to violence 
2. in case of binding local custom 
3. if there is special agreement between the territorial state and state of legation.

2. Asylum in premises of international institution 

Under International law there is no any rule regarding to provide asylum under premises of international institution. It provided only temporary asylum in case of danger of imminent violation.

3. Asylum in warship 

Asylum may be granted to political offenders but in case of warship it may be granted asylum on the ground of humanitarian if it is extreme danger of seeker. 

4.Asylum in merchant vessel

 In Merchant vessel also enjoy exercise and immunity similar as warship, it not provides asylum to local criminal except there is treaty between the states. Reason behind that, merchant vessel not grant asylum because they are not excluded from the jurisdiction of the state in whose water or port it is found.

International Legal Frameworks

Regional agreements, such as the ECHR and the American Convention on Human Rights, complement global frameworks. These treaties expand on the principles set out in the Refugee Convention and integrate regional human rights norms. For example, the ECHR’s Article 3, prohibiting torture and inhumane treatment, has been pivotal in asylum jurisprudence.

Case Laws:

Peru v Columbia (1950)

• Facts: This case involved a dispute over Colombia’s granting of asylum to a Peruvian national accused of participating in a rebellion.
• Issue: Whether Colombia’s unilateral declaration of asylum was binding on Peru.
• Ruling: The International Court of Justice ruled that Colombia could not unilaterally grant asylum in a manner binding on Peru, as this would infringe on Peru’s sovereignty.
• Relevance: This case underscores the importance of mutual agreement and respect for sovereignty in the granting of asylum.

Soering v. United Kingdom (1989)

• Facts: Jens Soering, a German national, faced extradition from the UK to the US, where he risked facing the death penalty.
• Issue: Whether extraditing Soering would violate Article 3 of the ECHR, which prohibits inhuman or degrading treatment.
• Ruling: The European Court of Human Rights ruled that extraditing Soering to the US would violate Article 3, emphasizing the principle of non-refoulement.
• Relevance: This case highlights the application of human rights protections in the context of extradition and asylum.

Hirsi Jamaa and Others v. Italy (2012)

• Facts: Somali and Eritrean nationals intercepted by Italian authorities on the high seas and returned to Libya.
• Issue: Whether Italy’s actions violated the prohibition of collective expulsion and the principle of non-refoulement under the ECHR.
• Ruling: The European Court of Human Rights found that Italy had violated the ECHR, underscoring the importance of protecting asylum seekers from being returned to countries where they may face persecution.
• Relevance: This case demonstrates the limitations on state actions concerning asylum seekers and the enforcement of international human rights standards.

Balancing Sovereignty and Human Rights

State Sovereignty

State sovereignty allows countries to control their borders and immigration policies. Nations argue that unrestricted asylum can strain resources, impact national security, and challenge social cohesion. This perspective underscores the importance of regulating asylum processes to ensure national interests are protected.

Human Rights

Conversely, the protection of human rights, especially for vulnerable populations fleeing persecution, is a fundamental international obligation. The principle of non-refoulement ensures that asylum seekers are not returned to danger, reflecting a commitment to uphold human dignity and prevent human rights abuses.

Contemporary Challenges

Mixed Migration Flows

Modern migration often involves mixed flows of refugees and economic migrants, complicating the asylum process. Distinguishing between those who qualify for asylum and those who do not is challenging but crucial for maintaining the integrity of asylum systems.

Safe Third Country Agreements

Safe third country agreements, where asylum seekers are returned to a third country deemed safe, have raised legal and ethical questions. Critics argue these agreements may violate non-refoulement principles if the third country lacks adequate protection for refugees.

Burden-Sharing and International Cooperation

The uneven distribution of asylum seekers places disproportionate pressure on certain countries, often those closest to conflict zones. Enhanced international cooperation and burden-sharing mechanisms are essential for a fair and effective asylum system.

Conclusion

International asylum law strives to balance the sovereignty of states with the imperative to protect human rights. While states have the right to regulate their borders, they must also fulfill their international obligations to protect those fleeing persecution. Strengthening legal frameworks and international cooperation is vital for addressing the complex challenges of asylum and ensuring that the rights of asylum seekers are respected.

FAQ

1. What is the principle of non-refoulement?
   • Non-refoulement is a fundamental principle in international law that prohibits the return of individuals to a country where they may face persecution, torture, or inhumane treatment.
2. How does state sovereignty affect asylum law?
   • State sovereignty allows countries to control their borders and immigration policies. However, international legal obligations require states to protect the rights of asylum seekers and refugees.
3. What are the key international treaties on asylum?
   • The 1951 Refugee Convention and its 1967 Protocol are the primary international treaties governing the protection of refugees and asylum seekers.
4. How do international courts influence asylum law?
   • International courts, such as the European Court of Human Rights, play a crucial role in interpreting and enforcing the principles of asylum law and human rights protections.
5. What challenges do asylum seekers face today?
   • Asylum seekers face challenges such as distinguishing between refugees and economic migrants, the legality and ethics of safe third country agreements, and the uneven burden on certain countries.

Author name-Aastha Srivastava, Baba Saheb Bheem Rao Ambedkar university (Central University) Lucknow.