ABSTRACT

This study investigates the protection of the right to asylum under international law. This study adopts a qualitative methodology essentially based on doctrinal research making use of content analysis and interpretation of primary and secondary sources of data. According to findings, the Geneva Convention for the protection of the rights of refugees has recorded many successes including; the extensive Ratification of the Convention by member states and extensive applications received as proof of its success and extensive applications received as proof of its success. More findings reveal that, the protection of the right to asylum has been welcomed with many challenges including: the disparity between the existence of a right to asylum and the lack of a corresponding state duty to grant asylum; the problem of climate refugees as well as the fact that  some countries have no asylum laws. This piece of work serves as literature for those wishing to research on  immigration law.

CHAPTER 1

                                       GENERAL INTRODUCTION

The right to asylum is a right recognized under international law and it’s aimed at the protection of individuals under persecution. It has evolved over time having originated the Council of Orleans in 511. Article 1(A) (2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group. Applying this definition, internally displaced persons (IDPs) – including individuals fleeing natural disasters and generalized violence, stateless individuals not outside their country of habitual residence or not facing persecution, and individuals who have crossed an international border fleeing generalized violence are not considered refugees under either the 1951 Convention or the 1967 Optional Protocol. This chapter provides evolution of the concept of asylum in the background to the study, discusses the problem that necessitated the research, the methodology employed, the objectives to be achieved and the significance and justification for the study, amongst others.

• BACKGROUND TO THE STUDY

The word “asylum” is the Latin counterpart of the Greek word “asylon,” which means freedom from seizure.[1] Historically, asylum has been regarded as a place of refuge where one could be free from the reach of a pursuer. Sacred places first provided such a refuge and scholars are of the view that “the practice of asylum is as old as humanity itself’.[2]

Despite its long history and worldwide practice, the term “asylum” still awaits a universally accepted definition. An authority in the area of refugee law, the late Professor Atle Grahl-Madsen, voiced the common observation of scholars that, “the term ‘asylum’ has no clear or agreed meaning.”[3] Notwithstanding this caveat, when the discussion turns from the meaning of “asylum” as a term to its meaning as a right, scholars are able to list concrete elements of that right. Indeed, the right of asylum has been said to comprise certain specific manifestations of state conduct: to admit a person to its territory, to allow the person to sojourn there, to refrain from expelling the person.to refrain from extraditing the person, and to refrain from prosecuting, punishing, or otherwise restricting the person’s liberty.

This right was recognized by the Ancient Egyptians, the Greeks, and the Hebrews, from whom it was adopted into Western tradition. René Descartes fled to the Netherlands, Voltaire to England, and Thomas Hobbes to France, because each state offered protection to persecuted foreigners.[4]

The Egyptians, Greeks and Hebrews recognized a religious “right of asylum”, protecting people (including those accused of crime) from severe punishments. This principle was later adopted by the established Christian church, and various rules were developed that detailed how to qualify for protection and what degree of protection one would receive.[5]

The basis and objective of the right to asylum is the principle that “a State may not claim to ‘own’ its nationals or residents.[6] Under international law, states have a right to grant asylum and a duty not to prevent those who wish to emigrate or seek asylum elsewhere from doing so. States parties to one or more international or regional treaties that prohibit refoulement also have a duty under such instruments not to return protected persons to states in which they would face persecution. Additionally, customary international law may impose a duty of non-refoulement upon states, although this principle is not, at present, settled law. On the other hand, under international law, individuals have an implied right to seek asylum. People have a right to leave their own country, and in some cases, a right, implied from the non-refoulement duty of a state, not to be returned to a place where they would face persecution. However, individuals have no right under international law to be granted asylum.

The right of a state to grant asylum is well established in international law. It follows from the principle that every sovereign state is deemed to, have exclusive control over its territory and hence over persons present in its territory.[7] One of the implications of this generally recognized rule is that every sovereign state has the right to grant or deny asylum to persons located within its boundaries.[8] Traditionally, thus, in international law, the right of asylum has been viewed as the right of a state, rather than the right of an individual.[9]

There is little dispute as to this general principle of international law. It is confirmed in international and regional instruments as well as in state practice. First, the Universal Declaration of Human Rights provides in Article 14(1) inter alia the right of each individual to “enjoy in other countries asylum from persecution.”[10] The late Professor Hersch Lauterpacht noted that this wording was introduced by the British delegation, interpreting it as meaning “‘the right of every state to offer refuge and to resist all demands for extradition.”[11].. Professor Lauterpacht commented that such a right is one, “which every state.., possesses under international law.[12] Second, the Declaration on Territorial Asylum adopted by the General Assembly of the United Nations in 1967 provides in Article 1(1) that, asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of Human Rights,… shall be respected by all other States.[13] Further, Article 1(3) of this Declaration vests the state of asylum with the authority “to evaluate the grounds for the grant of asylum.[14]

Consistent with international instruments, regional instruments evidence the right of a state to grant asylum. The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa provides, in Article II(1), that member states of the Organization of African Unity “shall use their best endeavors consistent with their respective legislations to receive refugees.[15] Similarly, the Convention on Territorial Asylum adopted by the Organization of American States in 1954, stipulates in Article 1 that, “every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without, through the exercise of this right, giving rise to complaint by any other State.[16] The Asian African Legal Consultative Committee, in 1966, adopted Principles Concerning Treatment of Refugees.[17] Lastly, in 1977, the Committee of Ministers of the Council of Europe adopted a Declaration on Territorial Asylum that in Article 2 reaffirms the right of states to grant asylum.[18] Finally, in addition to these regional agreements, many states have municipal asylum adjudication procedures.[19]

Contrary to a common misconception, the 1951 Refugee Convention (and its 1967 Protocol) does not mention the right to asylum at all. Instead, it contains a prohibition to penalize illegal entries from neighboring countries – potentially also other countries, at least if refugees have come directly from their country of origin[20] – and the non-refoulement principle: refugees must not be extradited, expelled, or deported to countries where they could be persecuted (more on this obligation in section III).

In addition, the 1951 Refugee Convention contains provisions on the status, rights, and obligations of refugees: in particular a prohibition of discrimination because of race, religion, or the country of origin,[21] the freedom of religion,[22] general minimum standards for the treatment of refugees in connection with the acquisition of property,[23] the right of association,[24] access to courts,[25] the right to work,[26] welfare,[27] the freedom of movement,[28] or the swift facilitation of their assimilation and naturalization.[29]

In the absence of international instruments establishing an individual’s right to asylum, the practice of states may create such a right. State practices evidencing international rights are both general and followed out of a sense of legal obligation (opinio juris).[30] With respect to the right to asylum, it cannot be said that such a right exists as a matter of customary international law.

The Czech Republic,’m the Federal Republic of Germany,[31] and Italy,[32] are among only a few states whose constitutions provide for an individual right to asylum, and, even then, there is no evidence that these states do so out of legal obligation rather than humanitarian concern for those in need of asylum. For example, in Germany, the right to asylum was not written into the Constitution out of a sense of legal obligation but rather out of the desire of the drafters, some of whom had themselves fled the Nazi regime, to place asylum “above changing political considerations of convenience and public interest.[33]

Thus, while some states give effect to their prerogative to grant asylum by creating in their municipal laws the right of an individual to asylum, such practice is far from general and, even where followed, does not constitute opinio juris.[34] It is therefore evident that the right of asylum in international law today consists of only the first two components identified by Professor Grahl-Madsen: the right of a state to grant asylum, and the right of an individual to seek asylum-the asylum-seekers right vis-d-vis his state of origin.[35] To date, no international instrument or custom vests the individual with a right to be granted asylum, a right vis-ti-vis the state of refuge.

The duty of a state not to return a person to a place where he would face persecution is presently the closest that an individual comes to a right to asylum in international law. Yet even in the best case with respect to non-refoulement-a case where, pursuant to an international or a regional multilateral treaty, a state is obliged not to return a person to a place where he would suffer persecution-the state has no express duty to allow an asylum seeker to enter its territory. This position was recently confirmed by the U.S. Supreme Court in the case of Sale v. Haitian Centers Council.[36] Sale held that the non-refoulement provision of the Refugee Convention/Protocol does not apply extraterritorially.[37] This interpretation allows a state to turn away asylum seekers not yet in its territory, even if these people would face persecution elsewhere.[38]

Where the right to asylum has been granted to someone it gives that person the opportunity to enjoy other basic human rights which he may have been deprived of from his own country of origin. Consequently this work is aimed at evaluating the realization or effectiveness of this right to asylum under international law