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QUESTION| Discuss the scope of right of asylum under International Law and explain ‘territorial’ and ‘extra-territorial’ asylum.
Importance of this question : 2017 LAW OPTIONAL MAINS
QUESTION POSTED ON | 21.10.2021
MODEL ANSWER WILL BE POSTED ON | 22.10.2021
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SCOPE OF RIGHT OF ASYLUM UNDER INTERNATIONAL LAW :
Asylum involves two elements: shelter and a degree of active protection.
It may be either territorial asylum, granted by a state on its territory, or extra-territorial asylum, granted in consular premises, diplomatic missions, etc.
DISCRETION OF THE STATE : A State can let an alien enter and remain in its territory even if his own State objects. When this is done, it is known to be as grant of asylum (or political asylum). This is complete discretion of the conferring state. Aliens have no ‘right’ of asylum, it is merely the right of a State to grant or refuse it.
TERRITORIAL ASYLUM : Right to grant asylum emanates from the doctrine of territorial supremacy or an aspect of territorial sovereignty. This general view that every state has a right to grant territorial asylum subject to the provisions of any extradition treaty in force.
Article 14, Universal Declaration of Human Rights 1948 provides that: 1. Everyone has the right to seek and enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
EXTRA-TERRIORIAL ASYLUM : States enjoy certain privileges and immunities in the territories of States in places such as their diplomatic missions in other States. As far as extra-territorial asylum is concerned, there exists no general right to grant diplomatic asylum. This point was confirmed by the ICJ in the Asylum case (1950).
Exceptionally extra-territorial asylum may be granted: (a) as a temporary measure to individuals in physical danger; (b) where there is a binding local customary rule that diplomatic asylum is permissible; (c) under special treaty.
Mohit