The History of Asylum Law in the International Law

1. Background of asylum law

The U.S. asylum law is derived from international agreements signed after the Second World War that offer protection for people who fear or escape persecution. The first agreement, the 1951 Convention[1] on the Status of Refugees, was negotiated by the United Nations in response to people’s large-scale migrations following World War II. The United Nations has sought to set an internationally negotiated definition on who is to be considered a refugee. Nevertheless, the 1951 Convention applied only to people who were refugees on the basis of incidents that took place before 1 January 1951. The United Nations adopted the refugee concept set out in the 1951 Convention but extended it to include potential refugees in the U.N. in 1967. Protocol Relating to refugee status. In 1968 the USA acceded to the 1967 Protocol. To bring U.S. legislation into line with its commitments under the Protocol, the United States adopted the 1980 Refugee Act, effectively following the same definition of refugee as set down by the Convention. A refugee is classified according to:

“Any person who is outside a country of that nationality or, in the case of a person who has no nationality, is outside a country in which that person has resided for the last time and who is unable or reluctant to return to that country and is unable or unwilling to take advantage of that country’s security because of persecution or a well-founded fear of persecution due to race.”[2]

A person may be granted asylum if he or she is present in the United States and otherwise meets the definition of a refugee.[3] The status of refugees may be based on race , religion , nationality, membership of a particular social group (PSG), or political opinion. Among the five grounds on which an asylum claim can be based, PSG membership is the most available for interpretation and thus provides the best justification for asylum claims based on sexual orientation, gender identity and/or HIV status.

Although there is no formal concept of what is appropriate as membership in a PSG, it has also been defined as a group of people who share a similar, unchanging characteristic that group members cannot or should not be expected to alter. In 1994, Attorney General Janet Reno declared the Toboso-Alfonso Matter case as a precedent in which a gay Cuban man was found entitled to avoid expulsion on the grounds of his membership of homosexuals in the PSG. This case was critical in establishing that a well-founded fear of persecution based on one’s sexual identity is a legitimate ground for seeking asylum status in the USA. The Ninth Circuit followed up in 1997 with a decision recognizing a lesbian from Russia as belonging to a PSG for asylum purposes.[4]

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Obligation Act, which largely limited access to asylum protection and significantly impeded the sexual orientation-based right to gain asylum status. The law created new obstacles to asylum, the most stringent of which was the filing period of one year. A claimant must apply for asylum within one year of their arrival in the United States in order to be granted asylum.

2. Right of Asylum in International Law

A. What is asylum law?

The term “asylum” is the Latin equivalent of the Greek word “asylum,” which means seizure-free. Asylum is a thing of the past was considered a place of refuge, where one could be free. The pursuer enters sacred places offered such refuge first, and Scholars are of the view that ‘asylum procedure is as ancient as it is Mankind itself.

B. Three faces of right of asylum are: –

i. The right of a state to grant asylum

ii. The right of an individual to seek asylum

iii. The right of an individual to be granted asylum

We will discuss all these rights in brief: –

i. A state’s right to offer asylum is well known in international law. It follows from the principle that each sovereign state is considered to have exclusive control over its territory and, consequently, over persons present in its territory. One of the implications of this widely accepted rule is that each sovereign state has the right to grant or deny asylum to individuals within its borders. In international law, therefore, the right of asylum has traditionally been seen as the right of a state, rather than the right of an individual.

ii. A second aspect of asylum law is an individual’s right to seek asylum. This is an individual right which an asylum seeker has in relation to his state of origin.? In essence, an individual has the right to leave his or her country of residence in pursuit of asylum. This right is based on the principle that “a State may not claim to ‘own’ its nationals or residents.” Several international and regional instruments enshrine the right. Article 13(2) of the Universal Declaration of Human Rights[5] states that, ‘everyone shall have the right to leave any country, including his own.’

iii. The third right aspect under the umbrella of the right to asylum is an individual’s right to be granted asylum. While it is claimed that Grotius and Suarez have accepted the right of asylum as the natural right of an person with a corresponding state duty to grant asylum,36 this view has not yet been widely recognized under international law. Article 14(1) Universal Declaration of Human Rights[6] proclaims an individual’s right “to try and appreciate in others countries pursuing asylum.

3. Case on asylum law

There is a very important and landmark case of asylum law named ASYLUM CASE (COLOMBIA vs PERU). This case is of 1950 and the court which had decided this case was International Court of Justice.

Overview of case: – Colombia offered asylum to a Peruvian, accused of having engaged in a Peruvian military revolt. Was Colombia entitled to make a unilateral and conclusive classification of the offense (as a political offence) in a manner binding on Peru, and was Peru legally obliged to provide the Peruvian with a safe passage from Peru?

Facts of the case: – Peru released a warrant of arrest in Peru on 3 October 1949 against Victor Raul Haya de la Torre “in respect of the crime of military rebellion.” Torre had fled to the Colombian Embassy in Lima, Peru, three months after the uprising. The Colombian Ambassador announced that Torre had been granted diplomatic asylum pursuant to Article 2(2) of the 1928 Havana Convention on Asylum[7] and demanded a safe passage from Peru for Torre. The Ambassador subsequently also claimed that Colombia had classified Torre as a political refugee pursuant to Article 2 of the 1933 Montevideo Convention on Political Asylum (note that the term refugee is not the same as the 1951 Convention on Refugees). Peru declined unilateral qualification and denied stable passage.

Decision of court: – The court declared that in the usual course of granting diplomatic asylum a diplomatic representative has the competence to make a provisional certification of the offense (as a political offense, for example) and the territorial state has the right to give consent to that certification. In the case of the Torre, as the State granting asylum, Colombia has stated that it is qualified to assess the essence of the crime in a unilateral and conclusive manner which is binding on Peru.

The court also held that the State which grants asylum under the Havana Convention or related principles of international law did not have an express or implied right of unilateral and conclusive qualification. Peru has not ratified the 1933 Montevideo Convention, which recognizes the right of unilateral qualification, and on which Colombia relied to justify its unilateral qualification. The Convention was not binding on Peru, for example, and given the low number of ratifications it cannot be assumed that the provisions of the latter Convention constitute customary international law.

4. Conclusion

This paper has looked at the international asylum law history. It challenged the institution’s perception of being obsolete and its strict equation with refugee status within the context of the Refugee Convention. By examining the historical origins and normative character of asylum, this paper showed that this institution has traditionally provided a normative structure common to different societies and has formed the relationships between sovereigns accordingly. Today it remains one of the pillars of States, whose purpose is not only to protect the individual but also the core values on which the State itself rests.

The specifics of what basic asylum protection offers, who is entitled to benefit from it, as well as its derogations or exceptions, are far from being resolved, but a reductionist approach that rejects the presence of asylum in international law for its lack of basis in an international treaty of universal scope does not consider the importance and role that this institution still plays in any respect. As international human rights monitoring bodies and international courts are called to examine state conduct concerning refugees and others entitled to asylum, the response of the scholar cannot be silent.

References

[1] Paul Weis, The Refugee Convention, 1951: the travaux préparatoires analysed, with a commentary (1995), https://www.unhcr.org/4ca34be29.pdf (last visited May 17, 2020).

[2] 8 U.S. Code § 1101 – Definitions, Legal Information Institute, https://www.law.cornell.edu/uscode/text/8/1101 (last visited May 17, 2020).

[3] [USC02] 8 USC 1158: Asylum, https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim (last visited May 17, 2020).

[4] 1. Asylum Law Basics: A Brief History, Immigration Equality, https://www.immigrationequality.org/get-legal-help/our-legal-resources/immigration-equality-asylum-manual/asylum-law-basics-a-brief-history/#.XsAdXmgzb4Y (last visited May 17, 2020).

[5] Universal Declaration of Human Rights, United Nations, https://www.un.org/en/universal-declaration-human-rights/ (last visited May 17, 2020).

[6] Universal Declaration of Human Rights, United Nations, https://www.un.org/en/universal-declaration-human-rights/ (last visited May 17, 2020).

[7] United Nations, Convention on Asylum Refworld, https://www.refworld.org/docid/3ae6b37923.html (last visited May 17, 2020).

Author: Ayush Garg (GNLU)