S.S.

JAIN SUBODH LAW COLLEGE

ASYLUM - A STUDY

2017-2018

PIL-I

SUBMITTED BY : SUBMITTED TO :

NAME : GAURAV KUMAR SHARMA Prof. DR. MARYAM ISHRAT BEG

CLASS : B.A. L.L.B. IInd yr. IIIrd semester

SECTION : B

ROLL NO : 9
ASYLUM

STUDY
 DECLARATION

I, Gaurav kumar Sharma, do hereby declare that, this dissertation titled " ASYLUM – A STUDY" is an
outcome of the research conducted by me under the guidance of Prof. DR. MARYAM ISHRAT BEG
(Asst. Prof. of law) at S.S. Jain Subodh Law College in fulfillment for the award of the degree of B.A.L.L.B.
at the University of Rajasthan .

I also declare that, this work is original , except where assistance from other sources has been taken and
necessary acknowledgements for the same have been made at appropriate places. I further declare that, this
work has not been submitted either in whole or in part , for any degree or equivalent in any other institution.

Date: 13-01-2018

Place: Jaipur

Name of Student: Gaurav kumar Sharma

(i)
 ACKNOWLEDGEMENT

I acknowledge with profundity, my obligation to almighty god and my parents for giving me the grace to
accomplish my work, without which this project would not have been possible.

I express my heartfelt gratitude to my respected faculty, Prof. DR. MARYAM ISHRAT BEG
(asst. prof. of law) for providing me with valuable suggestions to complete this dissertation.

I am especially grateful to all my faculty members at SS Jain Subodh Law College who have helped me
imbibe the basic research and writing skills.

Lastly, I take upon myself, the drawbacks and limitations of this study, if any.

Date: 13-01-2018

Place: Jaipur

Name of Student: Gaurav kumar Sharma

(ii)
 CERTIFICATE

Certified that the project work on the topic “ASYLUM – A STUDY” submitted by GAURAV KUMAR
SHARMA for the partial fulfillment of the degree B.A. L.L.B IIInd semester offered by the S.S. Jain
Subodh Law College during the academic year 2017-2018 is an original work carried out by the student
under my supervision and this work has not formed the basis for the award of any degree, diploma, or such
other titles.

Prof. DR. MARYAM ISHRAT BEG

Asst. prof. of law

S.S. Jain Subodh Law College

(iii)
 TABLE OF CONTENTS

SR. NO. TOPIC

1. Introduction
2. Historical background of asylum
3. Rationale for asylum
4. Types of asylum
5. Similarities and Differences between Territorial and
Extraterritorial Asylum

6. Right of Asylum under International Instruments

7. Asylum as a customary law

8. Asylum as a human right

9. An Appraisal of the Relationship between Asylum

and Extradition

(iv)

INTRODUCTION
The liberty of a State to accord asylum to a person overlaps to a certain extent with its liberty to refuse
extradition of that person at the request of some other State, an overlapping is best seen in the grant,
commonly, of asylum to political offenders, who correspondingly are not as a rule extraditable. Asylum
stops, as it were, where extradition begins, and this interdependence makes it important to consider the two
subjects together. Thus, to understand the relationship between extradition and asylum it is essential to first
deal with the concept of asylum in detail.

The term “Asylum” has no determined meaning and is applied in different contexts. Instruments of
International Law allude to asylum, but do not define it or specify its meaning. European Community law
applies the term in different senses. In the treaty of European Community, “Asylum” is closely linked to
protection offered pursuant to the Refugee Convention, 1951 which would be too narrow a definition for
present purposes. In academic writing, the definition of asylum adopted by Institute du Droit International at
its Bath Conference in 1950 is often applied:

“…….the terms “asile” designe La protection qu’ un Etat accorde sur son territore ou dans un autre endroit
relevant de certains de ses organs a’ un individuquiest venu la Chercher -“ the term “asylum” means the
protection offered by a State on its territory or elsewhere to an individual who came to seek it”.

According to this definition, firstly the term “individual”, (element-[4]) as the drafter of this definition
undoubtedly tacitly intended, the term asylum applies only to protection offered to aliens. States owe
protection to their nationals on account of that nationality; such protection hence needs no juridical category.
Thus, “an individual” should be understood as a person not possessing the nationality of the State he
requests protection from. Secondly, the term “protection” (element [1]), suggests some threat or danger from
which the individual needs shelter. Hence, asylum concerns protection by a State from a danger that
threatens the alien outside the State’s jurisdiction. Thirdly, regarding territorial scope the definition
intentionally covers both protection offered on the territory and protection offered at embassies and
consulates. Fourthly, the definition restricts “asylum” to protection offered “by State” (element [2]), thus
excluding protection by a church or other non-State actors.

Official accounts retain obeisance to the principle of asylum as having a long historical tradition in Britain.
A home office memorandum of 1984 is an example of this: The UK, like most other western European
Countries, has a long tradition of granting refuge to those who have fled their own countries to escape
political or religious persecution….. a historical account……………would need to back at least 16th
century when the grant of asylum to those who fear persecution for their religious beliefs became common
place. But it is worth noting that the first piece of modern immigration legislation – The Aliens Act, 1905,
provided that anyone who sought asylum on political or religious grounds should be granted entry and
should not be refused, leave to land even if he was likely to fall charge on public rates. In the same way
today a valid claim for asylum overrides the normal requirement of immigration control that other
immigrants must satisfy in order to enter or remain there.

Until the mid-1980s only refugees could invoke International Law to resist removal to a dangerous country
of origin. The evolution in International Law since that time has been fast – paced and profound. This is
most clearly under European Human Rights Law. No less an authority than House of Lords has declared that
the right of non-return extends not only to refugees, but to any person at risk of torture or inhuman or
degrading treatment or punishment, and at least where the risk is clear and extreme, applies also where any
right of life, freedom from slavery, liberty and security of person, to protection against expost facto
criminality, the right to privacy and family life, and to freedom of thought, conscience or religion is
threatened.

Another accepted view is that the word Asylum is a Latin word and it is derived from the Greek word
‘Asylia’ which means inviolable place. The legal dictionary defines Asylum as “Protection from arrest and
extradition, given especially to political refugees by a nation or by an embassy or other agency that has
diplomatic immunity”. The term is referred to those cases where the territorial State declines to surrender a
person to the requesting State, and provides shelter and protection in its own territory. Thus asylum involves
two elements.

1. Firstly, the shelter, which is more than a temporary refuge.

2. Secondly, a degree of active protection on the part of the authorities in control of

the territory of asylum.

 Historical Background of Asylum

Historically the word extradition stands for the opposite notion of traditional hospitality offered to an alien
and is, therefore “extra-tradition”. It is a process which derogates to the tradition of asylum. The practice of
asylum preceded in origin to that of extradition and, therefore, extradition became an exception to asylum,
both by reason of substance and as a consequence of their historical development. Asylum was the place
where a State could not exercise its jurisdiction over any individual, granted there in or upon any individual,
the inviolability of his person. This gave rise to legal connection between asylum and jurisdiction. Asylum
was not always uniformly recognized or practiced by societies through history, in fact the practice was
uneven, at one time it was selectively applied, and at other it was considered as a privilege rather than right.
Maximum examples of its application throughout the times are increasingly relied upon to give credence to
the theory of Suaaz and Grotius that asylum is an inherent human right deriving from Natural Law. The
practice originated in sanctuaries offered by the holy places in ancient times. The holy places, by virtue of
their association with divinity, came to be regarded as inviolable by the pursuing mortals. These places,
consequently, provided asylum to the pursued. The reverence for holy places was probably based either on
the superstition that the wrath of the God would fall upon the violator, or on the respect which these places
commanded as being the abode of God. Divinity thus protected the unfortunate member of the society from
certain primitive and cruel form of punishment. Thus ‘The Asylum’, the sacred place, was available even
against the civil authorities of the countries, where the religious and civil authorities remained separate.
However, in countries where the two were combined in one supreme authority, asylum was not available
against the civil authorities.

A different thought prevailed in other ancient civilizations. In India for example, the Laws of Manu insisted
upon the punishment of the crime. According to Manu, the punishment (the consequence) of the wrong (the
act) is justice, which is, following the Hindu thought, a necessary phenomenon. Therefore, it would be in the
interest of the culprit to put himself to justice through punishment, rather than to escape from it. Accordingly
the Laws of Manu would not approve Asylum. Furthermore, the king who did not punish a crime was
regarded an accomplice to it, whereas the king who punished the crime was to achieve glory in this world
and supreme happiness after his death. In such system, there would not be any place for asylum.

Similarly in Egypt evidence seems lacking to support a proposition that asylum was an institution
recognized by law, although accounts are found of asylum in the temple of Osiris and Amon, where slaves
would flee from the abuse of their lords. Generally speaking Egyptians followed the law rigidly and
punished its violator. Among the Greeks, a number of temples offered asylum, although there might not
have existed a general right to it. There was also a multiplicity of Gods, each Greek city being under the
special protection of particular God. The sanctity of a certain God was most dominating in the city whose
patron he was. A city tended to recognize the right of asylum not in any of its temples but in the temple of its
patron God. Generally speaking the Greeks regarded asylum necessary to alleviate the rigors of the law.15
In Rome, the legend of its founding is that, soon as Romulus and Remus founded the city, they opened a
place for fugitives in this temple and refused to deliver them because as they declared they were directed by
an oracle of Apollo to protect the asylum from violation. Thus the first part begins with the establishment of
the Roman Empire and lasts until consolidation. The aim was to establish a strong bellicose State and for
that reason the city was opened for all the fleeing people. It can be stated that Roman asylum was based on
the principle of practicality. Presumably it was the first asylum in Italy, except for the Greek colonies in
Garcia Magna. This view is supported by the fact that if the same kind of asylum had existed in other Italian
cities, Rome would not have been that popular to attract so many people from other places, who, later,
formed the class of ‘aliens’. Thus it can be assumed that this institution was originally adopted from the
Greeks because in Latin the Greek word ‘asylum’ was used and the havens were similar, for instance they
considered the same Gods as refugees protectors. Thus it can be stated that Roman asylum institution was an
important stage during the evolution of the right of asylum. Territorial asylum was limited by the consequent
and regular application of extradition and the perpetrating country’s criminal jurisdiction was supported by
international agreements. Thus the middle age asylum laws were incorporated by ecclesiastical norms.

However, these cannot be considered as belongings to the domain of International Law because they were
connected with crimes committed on the territory of the Church. Ecclesiastical asylum right represented the
Catholic Church’s mercy and forgiveness to the secular world. In 323 AD, Constantine the Great,
authorized Churches to exercise the right of asylum. With that power the Church got involved into criminal
jurisdiction of the secular State, which often caused conflicts between them as the Church gained more and
more power. The Arab tradition of asylum is long in existence in the Arabian Peninsula. It was started by
Prophet Mohammad who on entering Mecca after battling its residents, who opposed him, proclaimed two
sites as sanctuaries. Thus throughout the early history of asylum a common concept ran through it, namely
the relationship between the transcendental beliefs. Thus the reason why a sanctuary was not violated was
that the pursuers would become subject to the vengeance of the divinity whose sanctuary had been violated,
and also in some cases subject to temporal punishment. By the 16th century ideas on the reform of criminal
justice appeared and by the 17th century, religious wars and unremitting religious feuds abated, particularly
after the Treaty of West Phalia (1648). By the 18th century, penal reform and concern for world order
started to emerge and this development brought about new limitations on the law and practice of asylum.
Among these were:

1. Place should not confer absolute immunity to all types of fugitives because States

2. Have duty to prosecute common criminals, aut dedre aut judicare.

3. States have a reciprocal duty to each other in furtherance of developing world

order.
On the other hand the presence of asylum and refugee rights is sometimes considered as an achievement of
the modern International Law. Indeed, it has gained more importance since the beginning of the 20th century
and has become a core issue of the modern democracies. Since, the second half of the 20th century
international refugee law, asylum rights and the system of extradition has made great strides. Through the
bilateral and multilateral agreements conducted under the guidance of United Nations, an efficient and
complex system has been built. The recent development is strongly connected with the evolution of human
rights, which gained importance since Second World War. The national and international characteristics can
be clearly distinguished. The national character was distinctive until 17th century, when national legal orders
and criminal procedure were dubious and could not provide efficient guarantees and remedies in case of
failure. The main purpose behind this right was to provide help to the accused against encroachment until
the criminal procedure started with its legal guarantees for a fair and just trial. The asylum rights with
international characteristics, operating between States, had mainly political and humanitarian reasons. The
legal institution had been considered as a common field for both criminal and International Law until 19th
century, when refugees due to the European revolutions and fights for independence and the improved
transport facilities, fled to the other countries. By that time the question of competency finally seemed to be
settled and the International Law approach was accepted.

Thus there is no clear demarcation line in history to indicate the shift from predominant practice of religious
and ecclesiastic asylum to what became political asylum. The change was gradual and it came about with the
decline of ecclesiastic temporal power and the emergence of political doctrine of government and State and
their relationship to the individual, which occurred during the 17th and 18th century. Thus the asylum was
now not based on fear of Gods but on territorial sovereignty of States that could exist only among
independent sovereignties.
 Rationale for Asylum

Religious asylum declined with the emergence of the non-ecclesiastic State, in most of European Countries
after the separation of Church from the State and as the divine rights of the kings were now denied and this
particularly occurred after reformation. This led to the development of the asylum as is existing now days,
i.e. a form of immunity from foreign legal processes granted by the State of refuge to an alien subject to its
jurisdiction. The application of this type of asylum was within the territorial jurisdiction of a State rather
than within the walls of a temple or Church. The concept of asylum remains one of personal immunity from
the authoritative processes of a decision maker other than that of the jurisdictional authority under whose
power the alien falls.

On this basis the asylum can be categorized into:

a) Territorial Asylum

b) Extra Territorial Asylum

(1) Territorial Asylum : Denying another authoritative process the ability to exercise jurisdiction over an
individual through extradition or other modes of rendition of the person sought but who was granted asylum
and

(2) Extraterritorial Asylum: Granting asylum in an embassy or on a vessel. Hereinafter follows the
discussion on various types of asylum.
 Types of Asylum

As has been mentioned earlier asylum has been put into two categories which include Territorial and Extra
Territorial Asylum.

Territorial Asylum

Asylum is territorial where the State of refuge accords it to an individual upon its own territory. International
Law gives every State an exclusive control over persons on its territory. They have this inherent right, as an
attribute of their sovereignty, to grant asylum in their territory to all kinds of refugees, including the fugitive
offenders, but they are not under a legal obligation to grant asylum to a fugitive. The Territorial Asylum has
been further classified into:

(i) Political Asylum, i.e., for political defectors.

(ii) Refugee Asylum i.e., for those who fear persecution in their own country.

(iii) General Asylum i.e., for persons who have deserted their country to seek economic betterment but do
not enjoy the status of immigration. In the absence of treaty obligations, a State is neither bound to admit
aliens to its territory nor is it prevented from admitting them. It may choose to admit any one it pleases, it
may exclude anyone it pleases or it may admit one on whatever terms and condition it pleases.

This competence is a consequence of the territorial sovereignty of States. A State has even no obligation
under customary International Law to extradite as has been already discussed that the rules of extradition
have been developed through treaties and a large number of States has concluded such treaties. Various
kinds of Territorial Asylum are being discussed in detail below.

Political Asylum

Right to Political Asylum is an ancient juridical notion, under which a person persecuted for political
opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a
foreign country, or church sanctuaries ( as in medieval times). Political asylum is similar, but not identical to
modern refugee laws which deal with massive influx of population, while the right of asylum concerns
individual and is usually delivered on case to case basis. There is an overlap between the two because each
refugee may demand political asylum on individual basis. International practice confirms the proposition
that it is in the matter of political offences that States have the widest discretion to grant or to refuse asylum.
It is a familiar legal postulate that in the absence of a treaty, States have an almost unlimited competence to
grant asylum to those prosecuted for political offences. The reason of the exemption can be found in the well
founded apprehension that to surrender unsuccessful rebels to the demanding State would surely amount to
delivering them to their summary execution, or, in any event, to the risk of being tried and punished by a
justice colored by political passion. It is unquestionable that human rights and values are most vitally at
stake in times of turbulent political conditions, and it is precisely for this reason that no one would really
care to see criminal punishment meted out to those who have failed in their attempt to over throw an existing
government. Thus to surrender political rebels has been looked upon with a singularly marked antipathy and
the granting of asylum to such refugees has come to be generally regarded as moral duty. With this
background in mind, it can be readily seen that the law deeply rooted in sentiments of justice and humanity
has placed political offenders in a special category. But in trying to draw a proper line of demarcation
between common and political offenders, one is at once plunged into never ending controversy and a
desperate confusion. This has been rightfully considered as the most acute and persistent problem of law,
still offering considerable difficulties in application.

Refugee Asylum

The principle outlined above with respect to ‘political’ asylum applies also to refugee. Indeed, most
applicants for territorial asylum will also claim the status as refugees. A refugee is defined in Article 1 of
the Convention Relating to the Status of Refugees, 1951, ‘as a person who owing to well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to
return to it’.

General Asylum

At the base of the concerns of many States faced with an actual or threatened influx of asylum seekers is the
reality that some of these may not qualify as refugees in the sense of the 1951Convention, or as victims of
persecution is the sense of Universal Declaration38, but are seeking a better life for economic reasons or
social reasons. This can only be determined on a case by case basis. Such persons are not asylum seekers but
would be immigrants. Other persons may be genuine asylum seekers, not for political or similar reasons but
as a result of civil war in their own countries, or natural disasters such as famine or flood. Normally the need
for such asylum will not be lengthy before repatriation can take place, but the States offering temporary
asylum may need international assistance in order to bear the burdens. This kind of asylum comes under the
category of general asylum.
Extra Territorial Asylum

Asylum granted by a State not on its physical territory, but on its notional territory, like in legation and
consular premises in the physical territory of another State, and on warships, is called the extra territorial
asylum. Such kind of asylum finds its basis in:

(i) The Principles of Extra Territoriality

(ii) The Diplomatic Privileges

(iii) Custom

(iv) Usage

(v) Treaty or

(vi) Regional International Law

The extra territorial asylum can be further classified into:

(i) Diplomatic Asylum

(ii) Asylum in Premises of International Institutions

(iii) Asylum in War Ships

(iv) Asylum in Merchant Ships

Diplomatic Asylum

The granting of asylum in the legation premises is known as diplomatic asylum but it is an exceptional
measure and controversial. The Vienna Convention on Diplomatic Relations, 1961 contains no provision on
the subject although in Article 41, reference to “special agreements” in force between the sending State and
receiving State makes room for bilateral recognition of the right to give asylum to political refugees within
the mission premises. But on the other hand, Para (3) of Article 41 of the Convention provides that
thepremises of the mission must not be used in a manner “incompatible” with the functions of the mission. It
is also very doubtful whether a right of diplomatic asylum for either political or other offenders is
recognized by general International Law. Generally a State claiming to have such right must expressly
establish it, but on the other hand, in the absence of any clear rule, a territorial State is not bound to respect
such an asylum.
In the Asylum case Columbia v. Peru the Court stated:

“In the case of extradition (territorial asylum), the refugee is within the territory of the State of refuge……..
In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was
committed. A decision to grant diplomatic asylum involves derogation from the sovereignty of that State. It
withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matter
which is exclusively with in the competence of that State. Such derogation from territorial sovereignty
cannot be recognized unless its legal basis is established in each particular case.”

The facts of this case are given below. Victor Raul Haya de la Torre was a Peruvian national. On October
3rd, 1948 one military rebellion broke out in Peru which was organized and directed by AmericanPeople’s
Revolutionary alliance led by Haya de la Torre. The rebellion was unsuccessful. The Peruvian Government
issued warrant of his arrest on criminal charges related to this political uprising. He fled to the Columbian
embassy in Lima seeking for asylum from them. Columbia requested permission from Peru for Haya de la
Torre’s safe passage from the Columbian embassy, through Peru that goes to Columbia, Peru refused to give
such permission. Columbia then brought this suit against Peru in International Court of Justice. Columbia
pleaded on the ground of the Conventions in force which were ‘The Bolivarian Agreement, 1911 on
Extradition, The Havana Convention on Asylum, 1928; the Montevideo Convention on Political Asylum,
1933 and American International Law’. The Peru’s counter claim was based on the rules of the Havana
Convention 1928, Haya de la Torre was accused, not of political offence but of a common crime and
second, because the urgency which was required under the Havana Convention in order to justify that
asylum was absent. Decision of the International Court of Justice is being discussed as under: The Court
decided that Columbia was not competent to qualify the nature of the offence by a unilateral and defective
decision binding on Peru. Columbia was not entitled to claim that the Peru was bound to give guarantees
necessary for the departure of Haya de la Torre, with due regard to the inviolability of his person. Peru’s
contention that the grant of asylum, by Columbian government to Haya de la Torre was made in violation of
Article 2 Paragraph 2 of the Havana Convention was approved by the Court.

Thus it is clear that the power to grant territorial asylum is an incident of territorial sovereignty itself, but
granting of extra territorial asylum is rather derogation from sovereignty of the territorial State which has to
acquiesce in the action of State granting asylum by not apprehending the fugitives who enjoy its protection.
This kind of asylum is generally granted to political refugees.

Although there exist, several uncertainties about the existence of the right of the diplomatic asylum, a
number of principles are supported by State practice in this regard:

i. Modern International Law recognizes no general right to grant asylum in the premises of the
legation. Such grant seems rather prohibited by International Law. Its effect would be to exempt
the fugitive from the regular application of laws and administration of justice by the territorial
 State. The lack of any such general right of diplomatic asylum was affirmed by the International
Court of justice in Asylum case.

ii. Where there is well established local custom, the diplomatic asylum is permissible.

iii. As a temporary measure, to individuals physically in danger from mob disorder or mob rule, or
where the fugitive is in peril because of extreme political corruption in the local State, the justification being
presumably that by the grant of asylum, an urgent threat is temporarily tided over.

iv. Under a special treaty (usually allowing such right in respect of political offenders only) between
the territorial State and the State which is represented by litigation concerned. Although the right of
diplomatic asylum is existing among a number of Latin American States, its procure limits are not well
defined. This right primarily depends upon treaty provisions, for example the Havana Convention on
Asylum, 1928 and the Montevideo Convention on Political Asylum, 1933 and to some extent on common
unarticulated understanding. However, it is doubtful whether there exist any customary rules elaborating the
framework established by conventional obligations. In Asylum case, the Court observed that:

‘…….asylum as practiced in Latin America is an institution which, to a very great extent, owes its
development to extra-legal factors. The good neighbor relations between republics, the different political
interests of the governments, have favoured the mutual recognition of asylum apart from any clearly defined
judicial system. Even if the Havana Convention, in particular, represents an indisputable reaction against
certain abuses in practice, it no way tends to limit the practice of asylum as it may arise from agreements
between interested governments inspired by mutual feeling of tolerance and goodwill.’

The dissatisfaction and uncertainties raised by Asylum Case on the existence of a legal right of asylum
peculiar to Latin America led to the conclusion of an Inter-American Convention on Diplomatic Asylum ,
adopted at Caracas in March 1954. The Convention empowers the Asylum granting State to categorize the
nature of the offence for which the fugitive criminals arrest is sought and to decide upon the urgency of the
circumstances required before the asylum can be validity granted.50 In the Asylum case, the factor of
urgency came for the consideration, it was a disputing issue between Peru and Columbia, because Haya de
la Torre, who had been at large for three months after the rebellion and against whom arrest was ordered by
Peruvian authorities reappeared in the Columbian Embassy in Lima and was granted asylum. Therefore, it
was difficult to contend that his case was urgent. However, the Convention had not been widely ratified, and
the United States even refrained from signing the original draft on the ground that it did not recognize any
general right of diplomatic Asylum. The grant of asylum in legation premises is a question which is difficult
to be settled under International Law, mainly for the reason that the practice of the States is not uniform.
Political considerations often play a dominating role in granting asylum or in surrendering refugees. The
United States, like other major powers, has generally disapproved the invocation of diplomatic immunity for
fugitives. But not long after the eventual resolution of the Columbian – Peruvian (Asylum case) , the U.S.
embassy in Budapest granted diplomatic asylum to the Roman Catholic primate of Hungary, Joseph
The Government of India does not recognize the right of diplomatic asylum. It made this clear in its
circular of December 30, 1967, sent to all diplomatic missions in India. It was further reiterated by the
Indian delegate Dr. Seyid Mohammad on November 3, 1975, before the Sixth Committee concerning
diplomatic asylum. He stated, “The practice of temporary refuge is clearly justified on the grounds of
humanitarian considerations. What is important is that this practice does not in any way involve withdrawal
of persons concerned from the jurisdiction of the State. In fact, it helps the territorial State as much as the
refugee if he is returned to it (extradite) after the cessation of imminent danger to his life. The general rules
applicable to asylum granted in the legation premises are also applicable in relation to consular premises.

Asylum in Premises of International Institutions

The Headquarters agreements of the United Nations and specialized agencies reveal no general right of
international institutions to grant asylum or even refuge in their premises to offenders as against the
territorial State, and does not even recognize a right of protection on humanitarian grounds. It is difficult to
conceive, however, that a right to grant temporary refuge in an extreme case of danger from mob rule would
not be asserted and conceded.

Asylum in War Ships

The warships are treated as floating territory of the flag State and enjoy all immunities from the jurisdiction
of the foreign State in whose port or waters they are found. They enjoy immunity under International Law
and because of the similarly with the rule that diplomatic premises are inviolable, it has been claimed that
there exists an analogue right of asylum on boarding such ships. The diplomatic practice has also, to a great
extent, assimilated the position of warships with the status of diplomatic premises in this regard. It is a
generally held view that an individual, who is not a member of the crew and take refuge on board of a vessel
after committing a crime on shore, cannot be arrested by the local authorities and removed from the vessel if
the commander of the ship refuses to hand him over. On the other hand there is another view that such an
asylum should be granted only on humanitarian grounds if, the life of the individual seeking asylum is
threatened. Asylum may also be granted to political offenders on war ships.

Asylum in Merchant Ships

Asylum on Private vessels or merchant ships, in foreign territorial water do not enjoy that immunity from
local jurisdiction as is enjoyed by public vessels, except with respect to acts which affect the vessel internal
order and which do not disturb the peace of the port. Therefore, these vessels cannot accord asylum. Nor has
any practice of State developed distinctly to invest in such vessels a right to do so. Consequently, local
authorities have the right to arrest refugees in such vessels.
 Similarities and Differences between Territorial and Extraterritorial Asylum

Bassoiuni has rightly analyzed and brought about the points of similarities and distinction between territorial
and extraterritorial asylum when he states that, the most publicists and panelists who treat the subject
consider that the territorial asylum differs from extraterritorial or diplomatic asylum which some consider as
yet another form of asylum, and consequently, have come to regard them as different institutions. The
rationale advanced is that, extraterritoriality denies the sovereignty of State on whose territory it is
exercised, while territoriality affirms the sovereignty of the State on whose territory it is practiced.

The development of the distinction brought about the dichotomy between diplomatic and extraterritorial
asylum which are within the scope of customary International Law and territorial asylum which is within the
preview of municipal law. Thus, territorial asylum is often referred as internal asylum as distinguished from
extra territorial or external or diplomatic asylum. Each of these two forms became, therefore subject to two
different sources of legal control, i.e., International Law and municipal law. On the other hand territorial
asylum and extraterritorial asylum has been considered as two sides of the same coin. Sovereignty over
territory confers the right to exclude the exercise of jurisdiction over that same territory by any other
sovereign. Thus territorial asylum is the assertion of that right. Its applicability by extension encompasses
embassies, legations, military bases, territorial enclaves and vessels. The extraterritorial application of
sovereignty implies the same exclusive jurisdictional control as does the principle of territoriality. As
already discussed the source of legal authority is said to differ in both, the basis of territorial asylum is
municipal law, whereas extraterritorial asylum is said to have its legal basis in International Law, be it
customary or contractual. The distinction is rather tenuous in view of contemporary humanitarian
International Law and its application to municipal law. Furthermore, extraterritorial asylum is only an
extension of territorial asylum, even though recognition of this extension is grounded in International Law
rather than municipal law.
 Right of Asylum under International Instruments

The right to grant asylum was originally and exclusively conceived as a discretionary right of sovereign
States. It is a customary rule and cannot be viewed as an unfriendly act by the country of origin of the
refugee. The Universal Declaration of Human Rights, adopted by the General Assembly of the United
Nations on December 10, 1948, represents the first successful attempt to define the human rights which are
entitled to protection by the Law of Nations. It is also in this sense that human beings have become the
subjects of international guarantees and protection. It is also recognized that International Law can no longer
remain unconcerned with respect to violations of individual rights on either the national or international
level. And finally, it can be reasonably assumed that United Nations sanctions a person’s resort to a foreign
government in the event that any of the rights mentioned in the Declaration should be the object of
aggressions from local authorities. Similarly Article 1 of the Declaration on Territorial Asylum as adopted
by United Nations General Assembly in its resolution 64of December 14, 1967, states:

(i) Asylum granted by a State, in exercise of its sovereignty, to persons entitled to invoke Article 14 of the
Universal Declaration of Human Rights, including persons struggling against colonialism, shall be
respected by all other States.

(ii) The right to seek and to enjoy asylum may not be invoked by any person with respect to whom there are
serious reasons for considering that he has committed a crime against peace, a war crime or a crime against
humanity.

(iii) It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum.

Broadly there are two sources of law which support the practice of asylum namely:

Municipal law and International Law. Proponents of the right of asylum find support for the existence of
that right in either one or the other legal basis, but seldom rely on both and all too often ignore their
interrelationship. In municipal law, asylum may be found in Constitutional provisions, or legislative
enactments, particularly immigration laws and regulations. It may even exist in practice without legislative
authority. It is frequently mentioned in extradition treaties, either directly or indirectly, particularly in
reference to the political offence exception. Asylum is also the subject of international agreements other than
extradition treaties, particularly in respect to the rights of refugees. It is the subject of multilateral
Conventions for the protection of human rights and also arises from customary International Law.
 Asylum as a Customary Law

Considering that asylum is referred to in some extradition treaties, municipal laws, or exists in the practice
of some States without a formal legal basis and that it has a basis in international law, therefore, a State
which practices asylum under any one of these basis creates upon itself an international obligation to uphold
its customary practice evidenced by any one of these combined manifestations of its practice. These
obligations will, therefore, incur to the benefit of the individual. Yet, however, frequent references to asylum
in extradition treaties are established. Domestic legislation on the subject is considered to be insufficient to
constitute that type of custom evidenced by consistent State practice in order to grant asylum the recognition
it deserves as a part of customary International Law.
 Asylum as a Human Right

The point which must be particularly emphasized is that asylum is a protection founded primarily, but not
exclusively upon humanitarian grounds. This protection has been extended to two special categories of
persons. First, asylum has been given to political offenders simply because, in the presence of turbulent
political conditions, the institutions of a State cannot be entrusted with guaranteeing human rights and
fundamental freedoms to the person or persons responsible for such political disturbances. Because the right
of resistance to tyranny was recognized as an inalienable right of man since ancient times, the corresponding
right of asylum was established for those successfully rebelled against oppression. Moreover, revolutions are
generally accomplished through acts of violence and inhumanity and it is precisely the function of asylum to
protect human beings against such evils which have been perpetrated by both defacto and dejure authorities.

Secondly the preceding considerations represent only one aspect (though perhaps the most important) of
asylum. The asylum also serves as a means of protecting fugitives from justice unfairly prosecuted. But even
in this case, protection of the oppressed is the paramount concern. This latter aspect of asylum is not always
well observed still less is the fact that asylum accorded to those suffering from persecution and oppression
has developed from a practice into a right of individual, a right which is respected as an act of humanity.
Thus, in granting asylum a State is merely enforcing an already existing human right.

In other words asylum is considered as a human right which developed in International Law as a part of
minority protection from political persecution. This human right took two forms, that of granting minorities
the right to petition an international decision making body and that of leaving the jurisdiction and becoming
refugees in another State. To implement the latter it was indispensable that the refugee be granted the right
to such a status, that it would be sanctioned by International Law and subject to protection in municipal
legislation, in other words, a right to asylum. There is, therefore, considerable ambiguity as to the source,
development and legal basis for the contemporary human right to asylum. It does; however, appear that there
are two applications to asylum:

(i) As granted to refugees, displaced persons and in general to a community or group of people subjected to
persecution in one country by reason of race, religion, creed or political views.

(ii) As granted to individuals singled out by a given State for any of the above reasons, in other words, a
collective and an individual right to refugee asylum.

Thus it can be readily seen that the right of asylum can be naturally claimed with more intensity and tenacity
in areas and in times dominated by the vicissitudes of political convulsions. It will logically follow,
therefore, that in the face of present day human persecution and aggressions upon human rights in many
areas of the world community, the humanitarian purpose of the right of asylum accordingly increases in
urgency and vitality.
 An Appraisal of the Relationship between Asylum and Extradition

Extradition and Asylum are closely related, in as much as refusal of extradition may in effect constitute the
granting of asylum. But they are neither identical nor merely two sides of the same coin. The institutional
practices of extradition and asylum have developed side by side, with distinct purposes and functions. As
already discussed, extradition is designed to secure criminal justice and to minimize crime by denying
criminal fugitives a safe haven and by having them brought to justice through orderly procedures of
transnational cooperation. On the contrary asylum is peculiarly humanitarian, designed to provide a safe
haven for individuals fleeing their land of origin to escape political, religious or racial persecution.

For those not intimately familiar with International Law enforcement, the processes of asylum and
extradition may seem like mirror images. In practices, however, they are very different. Of the millions of
asylum seekers around the world, the vast majorities never had problems with criminal laws; most tend to be
victims of discrimination, genocide, or political persecution who are seeking a safe haven. The granting of
asylum is an administrative process carried out in secrecy by immigration authorities. On the other hand
those who are subject to extradition, rarely seek asylum. They are fugitives from justice who usually hide
from authorities, often using false identities. Because of various multilateral and bilateral treaties, States are
obligated to catch them and deport them to face criminal charges in foreign lands.91 But if the accused
believe that the extradition charges are false, they can seek exemption from deportation in a Court of law, in
an open hearing. These hearings are quite different from criminal trials; the Court does not decide on the
question of guilt or innocence. In fact, the burden of proof rests with defendant, he has to demonstrate that
the request to give him up is without merit or politically motivated or that he would fall on unfair trial,
torture or death if extradited. In other words, defendant face a presumption of guilt, not innocence. As has
been stated:

Extradition and Asylum are thus conflicting concepts, not mirror images. An asylum request would not be
considered if there is extradition case pending and the Court, as a rule would not hear an extradition case
against someone who has been granted asylum from the same country. Laymen erroneously try to establish a
direct link between non extradition and asylum. This is not necessarily true. Extradition can be refused
without granting asylum, the State having other alternatives to deal with the offender, for example the State
may expel the offender whom it does not wish to protect. The grant of asylum, on its part, is also
independent from the decision on a request for extradition. But if look from a different angle, extradition and
asylum overlap and intersect in various ways. For example if the person whose extradition is sought is a
refugee or asylum seeker or if an asylum application is filed after the wanted person learns of a request for
his or her extradition. International refugee protection and criminal law enforcement are not mutually
exclusive. International refugee law does not as such stand in the way of criminal prosecution or the
enforcement of the sentence, nor does it generally exempt refugees and asylum seekers from extradition, yet
in determining whether a refugee or asylum seeker may be lawfully extradited, the request is bound to take
into consideration the legal safeguards in place for those who flee persecution rather than prosecution, and
who are therefore, in need of international refugee protection. Political asylum, even if commendable and to
be encouraged in municipal laws and practice, is not one of the recognized principles embodied in the
Universal Declaration of Human Rights.
 BIBLIOGRAPHY

 asylum in Charlton T. Lewis and Charles Short (1879) A Latin Dictionary, Oxford: Clarendon Press

 asylum in Charlton T. Lewis (1891) An Elementary Latin Dictionary, New York: Harper & Brothers
 “asylum” in Félix Gaffiot’s Dictionnaire Illustré Latin-Français, Hachette (1934)
 asylum in Harry Thurston Peck, editor (1898) Harper's Dictionary of Classical Antiquities, New York:
Harper & Brothers
 asylum in Samuel Ball Platner (1929), Thomas Ashby, editor, A Topographical Dictionary of Ancient
Rome, London: Oxford University Press
 asylum in William Smith et al., editor (1890) A Dictionary of Greek and Roman Antiquities, London:
William Wayte. G. E. Marindin

 www.meritnation.com
 www.iasbaba.com
 www.legalserviceindia.com

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