View Full Version : Write note on Asylum. (1997)(2001)

09-07-2012, 06:31 AM
1. Introduction:
Asylum is the protection which a state gives on its territory on in some other place under the control of certain of its organs to a person who comes to seek it. it is the right to every state to refuse to extradite any refugee in certain circumstances.
2. Meaning:
The word Asylum is Latin and derived from the Greek word "Asylia" which means invoidable place.
3. Definition:
Asylum is shelter and active protection extended to a political refugee from another state by a state which admits him on his request.
4. Basis of Asylum:
A state has a right to grant asylum to a person on the principle that it has a sovereign right to control over the individual found on its territory. the right of territorial asylum has been conferred to a state on the basis of its sovereignty over territory.
5. Elements of Asylum:
There are two main element of Asylum which are following.
(a) Shelter.
(b) Active protection on the part of the authorities in control of the territory of asylum.
6. Reasons for Asylum:
Following can be the main reasons for granting asylum.
(a) To save a person from the jurisdiction of the local authority.
(b) May be granted on extra legal ground so on humanitarian ground.
(c) For the sake of national security.
Corfu Channel Case 1949:
It was held by ICJ that Asylum may be granted on humanitarian ground in order to protect political offenders against the violent action.
7. Right of a person to claim asylum:
In accordance with the "universal declaration of human rights under article 15 "every one has a right to seek and enjoy in other countries asylum from prosecution.
8. Types of Asylum:
Asylum has two types.
(i) Territorial asylum.
(ii) Extra territorial or diplomatic asylum.
I. Territorial asylum:
When asylum is granted by a state in its own territory it is called territorial asylum. a state has right to admit or expel any person found on its territory. the grant of territorial asylum is discretionary in its nature.
(i) Reason for grating territorial asylum:
The right to grant asylum by a state to a person on it territory flows from the fact that every state exercise territorial sovereign over all person, on its territory.
(ii) Resolution of the general assembly on asylum 1969:
According to the resolution of the general assembly on asylum 1967, the states shall do the following in granting asylum.
(i) Where a person requests for asylum his request should not be rejected.
(ii) If state feels difficulty in granting asylum, then it must take appropriate meanures.
(iii) If asylum is granted, it should be respected by other states.
II. Extra territorial or diplomatic asylum:
When asylum is granted by a state at places outside its own territory it is called extra territorial or diplomatic asylum.
M' cnair views:
The term extra territorial or diplomatic asylum is usually, described to those cases in which a state decline to surrender a person demanded who is not upon its own physical territory but its upon one of its public ships lying foreign territorial waters or upon its diplomatic premises within foreign territory.
(a) Classification of extra territorial or diplomatic asylum:
Extra territorial or diplomatic asylum can be classified in to the following.
(i) Asylum in legation or foreign embassies:
Where asylum is granted by a state within its embassy premises situated in foreign country it is called asylum in legation. there is no general right to grant asylum in the premises of the legation. the international court of justice held that there is no general right of diplomatic asylum.
Exceptional cases:
Diplomatic asylum can be granted in the following cases.
(i) It can be granted for temporary period.
(ii) It can be granted where there is well established custom.
(iii) It can be granted where there is treaty.
(ii) Asylum in consulates:
The rules regarding asylum in consulates are similar to that of asylum in diplomatic or legation.
(iii) Asylum in warships:
Men of war and public vessels of foreign states, while in post or internal waters of another state are exempted from the jurisdiction of latter for the certain objects. asylum in warships may be granted on ground of humanity and fugitive once or board is perhaps immune from seizure by the territorial state.
Challies vs Fenwick case:
Court hold that asylum in warships can only be granted to political refugees not to criminal.
(iv) Asylum in Merchant Vessels:
Merchant vessels are not exempted from the local jurisdiction and therefore asylum can be granted to an offender however asylum can be granted if they conclude a treaty to this effect.
(v) Asylum in the premises of international institutions:
International law does not recognize rule regarding the grant of asylum in the premises of the international institutions. however temporary asylum may be granted in an extreme case of danger.
9. Conclusion:
To conclude it can be said that, asylum is shelter and active protection extended to a political refugee from another state by a state which admits him of his request. it has two main from territorial and extra territorial asylum. the main difference between two is in territorial asylum the refugee is within the territory of the state or refuge and in case of extra territorial the refugee is within the territory of the state where the offence was committed.