Asylum

Non-refoulement is the operative rule, because it does not require a State to grant asylum; it forbids sending the person back. That is a duty owed to the individual, and it is the one real qualification of the sheltering State's discretion.

India is not a party to the 1951 Convention or the 1967 Protocol, and has no refugee statute. It has nevertheless hosted very large refugee populations, dealing with them under the Foreigners Act and by executive decision, and it is widely argued that non-refoulement binds India as customary international law. That last proposition should be stated as an argument, because it is one.

Diplomatic asylum

The problem. A person takes refuge in a foreign embassy inside the very State whose authorities want him. If the embassy may shelter him, the territorial State's jurisdiction has been defeated inside its own territory.

The rule. Diplomatic asylum is not generally recognised in international law. The premises of a mission are inviolable, so the territorial State's agents may not enter without the head of mission's consent, but inviolability is a rule about entry and not a right to shelter fugitives from the local law.

The leading authority is the case MU's syllabus does not name here but which decides the question.

Facts. Asylum Case (Colombia v. Peru), ICJ Reports 1950, page 266, decided 20 November 1950. On 3 October 1948 a military rebellion broke out in Peru and was suppressed the same day. Victor Raul Haya de la Torre, head of the American People's Revolutionary Alliance, was prosecuted for instigating and directing it. On 3 January 1949 the Colombian Ambassador in Lima granted him asylum in the embassy, qualified him as a political offender, and asked Peru for a safe-conduct to let him leave the country. Peru refused, saying he had committed common crimes. The two States agreed by an Act signed at Lima on 31 August 1949 to submit the dispute to the Court.

Held. By fourteen votes to two, Colombia was not entitled to qualify unilaterally, in a manner binding on Peru, the nature of the offence. The Bolivarian Agreement of 1911 recognised asylum in accordance with the principles of international law, and those principles do not entail a right of unilateral qualification; the Havana Convention of 1928 conferred no such right expressly or by implication; and the Montevideo Convention of 1933 had not been ratified by Peru. As to a regional American custom, Colombia had not proved a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State, because the facts disclosed too much contradiction and fluctuation. By fifteen votes to one, Peru was not bound to deliver a safe-conduct. By fifteen votes to one the Court rejected Peru's contention that Haya de la Torre was accused of common crimes, noting that the only count against him was military rebellion, which is not in itself a common crime. By ten votes to six, the requirements for asylum under the Havana Convention were not satisfied when it was granted: asylum could not be an obstacle to proceedings instituted by legal authorities operating in accordance with the law, and may intervene against the action of justice only where arbitrary action is substituted for the rule of law, which had not been shown.

Why it matters. Three propositions come out of it. The State granting diplomatic asylum has no right to decide unilaterally, binding on the territorial State, that the offence is political. The territorial State is under no duty to grant a safe-conduct. And diplomatic asylum protects against arbitrary action, not against the ordinary operation of the courts. Read together, those propositions leave diplomatic asylum with very little content in general international law, and explain why it survives mainly as a Latin American regional practice founded on treaty.

The two compared

A worked example

Mr B, a national of State C, leads a protest that turns violent. A police officer dies. Mr B runs into the embassy of State D in State C's capital and asks for asylum. State D's ambassador declares him a political refugee and asks State C for a safe-conduct to the airport. State C refuses and demands he be handed over. Mr B's brother, meanwhile, flies to State D and claims asylum there.

The brother, in State D's own territory. This is territorial asylum, and it is straightforward. State D may grant it as an incident of its territorial sovereignty and State C has no legal claim. If State C requests extradition, State D may refuse, and the political offence exception in [Extradition] would be the natural ground.

Mr B, in the embassy. This is diplomatic asylum, and the Asylum case governs. State D has no right to qualify the offence unilaterally so as to bind State C. State C is under no obligation to issue a safe-conduct. And asylum is not an obstacle to proceedings instituted by legal authorities operating in accordance with the law; it may intervene against justice only where arbitrary action is substituted for the rule of law.

Must State C's police enter the embassy? They may not. Article 22 of the Vienna Convention on Diplomatic Relations makes the premises inviolable and the agents of the receiving State may not enter without the head of mission's consent, as [Immunity from Jurisdiction] sets out. So the position is a standoff, and standoffs of exactly this kind have lasted for years.

What are State C's remedies? It may refuse the safe-conduct indefinitely. It may declare the ambassador persona non grata under article 9. It may break off relations. What it may not do is force the embassy.

Change the facts: State C's courts have been abolished and its opponents are being shot without trial. Now the Court's own qualification bites: asylum may intervene against the action of justice where arbitrary action is substituted for the rule of law. State D's position becomes far stronger, and this is the one situation in which diplomatic asylum has a settled justification.

What it does NOT mean

There is no individual right to be granted asylum. Article 14 of the Universal Declaration gives a right to seek and to enjoy asylum, not to receive it, and the Declaration is a resolution rather than a treaty.

Inviolability of premises is not a right of asylum. It stops the territorial State entering; it does not give the mission a power to shelter.

Asylum is not refugee status. Asylum is what a State grants. Refugee status is a status defined by the 1951 Convention, carrying the non-refoulement obligation in article 33, and it binds the parties whether or not they choose to grant asylum.

Non-refoulement is not a duty to admit. It is a duty not to return a person to a territory where his life or freedom would be threatened on a Convention ground, which is a narrower and more workable obligation.

Limits and criticism

The law protects States and not people. Territorial asylum is a right of the sheltering State; the individual's only real protection is non-refoulement, and that binds only parties to the Refugee Convention unless it is customary.

Diplomatic asylum is unsettled and produces standoffs. After the Asylum case the sheltering State cannot compel a safe-conduct and the territorial State cannot enter the embassy, so the person may remain for years, which serves nobody.

India's position is anomalous. It hosts very large refugee populations and is party to neither the Convention nor the Protocol, so protection rests on executive discretion under the Foreigners Act and on the argument that non-refoulement is customary. That argument is respectable and it is not a statute.

Quick revision

Asylum is protection granted by a State against the jurisdiction of another. Territorial asylum is granted in the sheltering State's own territory and follows from territorial sovereignty; diplomatic asylum is granted in its embassy inside the territorial State and derogates from that State's sovereignty.

Article 14 of the Universal Declaration: everyone has the right to seek and to enjoy asylum from persecution, not to be granted it, and not where prosecution genuinely arises from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Refugee Convention 1951, article 33, non-refoulement: no contracting State shall expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on a Convention ground, subject to the security and serious-crime exception. India is a party to neither the Convention nor the 1967 Protocol.

Asylum Case (Colombia v. Peru), ICJ Reports 1950, page 266: the sheltering State has no right of unilateral qualification binding on the territorial State; the territorial State owes no duty to grant a safe-conduct; and asylum is not an obstacle to proceedings by legal authorities operating in accordance with the law, intervening only where arbitrary action is substituted for the rule of law. Military rebellion is not in itself a common crime.

Diplomatic asylum is not generally recognised; article 22 inviolability of mission premises is a rule about entry, not a power to shelter.

Test yourself

1. Distinguish territorial from diplomatic asylum.

Territorial asylum is granted by a State within its own territory and is an incident of territorial sovereignty, so no other State can complain of it. Diplomatic asylum is granted in an embassy or other premises situated within the territory of the State from which the person is fleeing, and it therefore derogates from that State's sovereignty and removes a person from the jurisdiction of the courts of the territory in which he committed the offence. Territorial asylum is generally recognised in international law; diplomatic asylum is not, and survives mainly as a Latin American practice founded on regional treaties.

2. State the three propositions in the Asylum case.

First, the State granting asylum is not entitled to qualify unilaterally, in a manner binding on the territorial State, the nature of the offence; neither the Bolivarian Agreement of 1911 nor the Havana Convention of 1928 conferred such a right, the Montevideo Convention of 1933 was not binding on Peru, and no regional custom was proved because the practice disclosed too much contradiction and fluctuation. Second, the territorial State is under no obligation to deliver a safe-conduct. Third, asylum cannot be an obstacle to proceedings instituted by legal authorities operating in accordance with the law, and may intervene against the action of justice only in cases where arbitrary action is substituted for the rule of law.

3. Does an individual have a right to asylum?

No, or not in the sense usually assumed. Article 14 of the Universal Declaration of Human Rights confers a right to seek and to enjoy asylum from persecution, and a proposal to confer a right to be granted asylum was not accepted; the Declaration is in any event a General Assembly resolution and not a treaty. The individual's real protection is article 33 of the Refugee Convention 1951, the principle of non-refoulement, which does not require a State to grant asylum but forbids it to expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on a Convention ground.

4. Explain non-refoulement and its exception.

Article 33(1) of the Refugee Convention 1951 provides that no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Article 33(2) excepts a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community. It is a duty owed to the individual and it is the one real qualification on a State's freedom to decide whom to shelter.

5. What is India's position on refugees?

India is not a party to the Convention relating to the Status of Refugees 1951 or to its 1967 Protocol, and has no dedicated refugee statute. Refugees are dealt with under the Foreigners Act and by executive decision, and India has in practice hosted very large refugee populations over long periods. It is widely argued that non-refoulement binds India as a rule of customary international law and, on the reasoning in [International Law in Indian Courts], custom is applied by Indian courts without legislation provided it does not conflict with an Act of Parliament. That argument should be presented as an argument, because it is contested and not settled by statute.

6. A fugitive is inside a foreign embassy and the territorial State demands his surrender. What is the legal position?

A standoff, and the law produces it. The mission's premises are inviolable under article 22 of the Vienna Convention on Diplomatic Relations, so the territorial State's agents may not enter without the head of mission's consent, and forcing entry would be a serious breach. But on the Asylum case the sending State has no right to qualify the offence unilaterally so as to bind the territorial State, and the territorial State is under no duty to issue a safe-conduct out of the country. The territorial State's remedies are to refuse a safe-conduct indefinitely, to declare the ambassador persona non grata under article 9, or to break off relations. The one situation in which the sheltering State's position is strong is where arbitrary action has been substituted for the rule of law, which is the qualification the Court itself stated.