Asylum (Shelter) – International Law
The word shelter is a Latin word, which is derived from the Greek word ‘acileia’, which means inextricable space. The term is used in cases where the territorial state refuses to hand over a person to the requesting state and grants him asylum and protection in his territory. Extradition and asylum are contrary to each other, if a person is handed over to the requesting state by the territorial state, it is called extradition. If he is not entrusted by the territorial state, but is provided with shelter and protection, then it is called asylum. Thus the persons who are not extradited are provided asylum.
That’s why Stark said that – “Asylum ends where extradition begins.”
Basis of Asylum
The state’s right to grant asylum to a person is based on the principle that it has a sovereign right to control all persons found within its territory.
The state’s right to grant asylum to a person is based on the principle that it has a sovereign right to control all persons found within its territory.
Reasons of Asylum
1. Asylum is provided to protect a person from the jurisdiction of the local authorities. It is feared that if he is extradited, fair justice will not be available.
2. Asylum is provided to prevent human rights violations.
3. National security also plays an important role in providing shelter. The criminal who is in the form of a rebel in that state today may also be the ruler in future. If this happens, if extradition is done today, relations could be strained in the future.
Types of Asylum
The state can provide shelter to a person in two ways.
- State Territorial Asylum
- External territorial Asylum .
- State Territorial Asylum – When Asylum is provided by the State in its territory, it is called State Territorial Asylum . The state has the right to admit or expel any person found in its territory. Therefore, the grant of state territorial Asylum is at the discretion of the state. The General Assembly adopted the State Territorial Asylum Declaration by passing a resolution on December 14, 1967.
Asylum Declaration by passing a resolution on December 14, 1967.
- External Territorial Asylum- When Asylum is provided by the state at a place outside its territory, i.e. in the premises of embassies, consulates and warships etc., then it is called ex-territorial. The state does not have full authority to provide such Asylum , but it is provided keeping in mind the humanitarian point of view in certain circumstances.
The following are the out-of-state territorial Asylum in Embassies – Generally, international law does not confer this right on an embassy. But shelter can be given in embassies in some of the following circumstances-
(1) If the life of any person is in danger or is suffering from the atrocities of the local government. The rationale for this is that a near fear can be allayed by providing shelter.
(2) Local customs prevailing in this regard.
(3) Where there is a mutual treaty between the two countries in this regard.
India’s opinion with respect to asylum in the embassy-
(1) India issued a circular on December 30, 1967 to all foreign embassies located in India, stating that India would not recognize the right of embassies to provide shelter to any person or persons within their premises.
(2) Asylum in a consulate is similar to that of an embassy.
(3) Asylum in the premises of international institutions – No refugee has the right to asylum in the premises of international institutions. But it is not unreasonable to grant a temporary refuge to a person in a “great calamity”.
4. Asylum in Warships – In so far as Shelter in Warship is concerned, it may be provided on humanitarian grounds in case of extreme danger to a person desiring shelter.
5. Asylum in a commercial vessel-
Merchant ships cannot provide shelter to local criminals as they are not exempt from local jurisdiction.
Is it a right of a person to get asylum?
The Universal Declaration of Human Rights provides under Article 14 that “every person has the right from persecution to seek asylum in another country and to enjoy such asylum.” But a person can only ask for shelter, and after asking, can use it only when it is provided by the state. The states exercise their discretion in this regard.
Asylum and India
India does not recognize ex-territoriality. India had given it to the Dalai Lama and his followers in 1955.
