Types of Asylum in International Law

Asylum is a fundamental concept in international law, offering protection to individuals fleeing persecution, conflict or other severe threats in their home countries. The notion of asylum has evolved significantly over centuries, with various international treaties, conventions and customary practices shaping its current legal framework. Today, asylum serves as a critical tool in safeguarding human rights and ensuring that individuals facing genuine danger have a chance to live in peace and security. 

What is Asylum?

Asylum is a legal protection granted by a state to foreign nationals who have fled their home countries due to persecution, war or other serious threats to their lives and freedom. The term “asylum” is derived from the Greek word “asylon,” meaning “inviolable place.” In essence, asylum offers a safe haven for individuals who cannot return to their countries of origin because they face the risk of persecution based on race, religion, nationality, membership in a particular social group or political opinion.

Under international law, asylum is not just a humanitarian gesture but also a legal obligation for states that are party to various international treaties, such as the 1951 Refugee Convention and its 1967 Protocol. These treaties establish the rights of asylum seekers and refugees, as well as the responsibilities of states to protect them. The right to seek asylum is also enshrined in Article 14 of the Universal Declaration of Human Rights, which states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”

The Process of Seeking Asylum

The process of seeking asylum typically involves several stages, beginning with the asylum application and culminating in the granting or denial of asylum status. While the specific procedures can vary from one country to another, the general process includes the following steps:

1. Application Submission: An individual seeking asylum must first submit an application to the relevant authorities in the country where they seek protection. This application usually includes personal information, reasons for fleeing their home country and any evidence of persecution or threats they have faced.
2. Initial Screening: After receiving the application, authorities conduct an initial screening to determine whether the applicant meets the basic criteria for asylum. This may involve a preliminary interview to assess the credibility of the applicant’s claims.
3. Detailed Interview: If the initial screening is successful, the applicant undergoes a more detailed interview, where they are asked to provide a comprehensive account of their experiences and reasons for seeking asylum. This interview is important in determining the legitimacy of the asylum claim.
4. Decision-Making: Based on the information provided during the interview and any supporting evidence, authorities make a decision on whether to grant asylum. This decision is typically based on the applicant’s ability to demonstrate a well-founded fear of persecution if they were to return to their home country.
5. Appeal Process: If an asylum application is denied, the applicant usually has the right to appeal the decision. The appeals process varies by country and may involve submitting additional evidence or appearing before a judicial body.
6. Granting of Asylum: If the asylum application is approved, the individual is granted asylum status, which allows them to reside in the host country and enjoy certain rights and protections. In many cases, asylum status can eventually lead to permanent residency or citizenship.

Types of Asylum in International Law

Asylum can be categorised into different types based on where and how it is granted. The main types of asylum recognised in international law include territorial asylum, extraterritorial asylum, diplomatic asylum and temporary asylum. Each type has its own legal basis, procedures and implications.

Territorial Asylum

Territorial asylum is the most common form of asylum and is granted within the territory of the state offering protection. This type of asylum is grounded in the principle of state sovereignty, which allows a state to control who enters and resides within its borders. Territorial asylum is typically granted to individuals who have already entered the host country, either legally or illegally and are seeking protection from persecution in their home country.

Legal Basis

The legal foundation for territorial asylum is found in various international treaties and conventions, including the 1951 Refugee Convention and its 1967 Protocol. Article 33 of the Refugee Convention, known as the principle of non-refoulement, prohibits states from returning refugees to territories where their lives or freedom would be threatened. This principle underpins the practice of granting territorial asylum, ensuring that individuals at risk of persecution are not forcibly returned to their home countries.

Examples

One of the most notable examples of territorial asylum is India’s decision to grant asylum to the Dalai Lama and his followers in 1959. Fleeing persecution by the Chinese government, the Dalai Lama and thousands of Tibetans were welcomed into India, where they were granted protection and allowed to establish a government-in-exile.

Extra-Territorial Asylum

Extraterritorial asylum, also known as diplomatic or consular asylum, is granted outside the territory of the state offering protection. This type of asylum is typically provided within the premises of a state’s embassy, consulate or aboard its warships. Extraterritorial asylum is less common than territorial asylum and is often surrounded by diplomatic sensitivities, as it involves offering protection on foreign soil.

Diplomatic Asylum

Diplomatic asylum is a form of extraterritorial asylum granted within the premises of a state’s diplomatic mission, such as an embassy or consulate, in a foreign country. This type of asylum is typically offered to individuals who face imminent danger and cannot safely leave the host country. Diplomatic asylum is not universally recognised under international law and is often a contentious issue between states.

Legal Basis

Diplomatic asylum is primarily based on the principle of inviolability of diplomatic premises, as established by the Vienna Convention on Diplomatic Relations (1961). According to this principle, the premises of a diplomatic mission are considered the territory of the sending state and local authorities cannot enter without permission. However, the granting of diplomatic asylum is not explicitly recognised in international law and its legitimacy depends on the specific circumstances and the relations between the involved states.

Examples

One of the most famous cases of diplomatic asylum is that of Julian Assange, the founder of WikiLeaks, who sought refuge in the Ecuadorian Embassy in London in 2012. Assange was granted asylum by Ecuador to avoid extradition to Sweden, where he faced allegations of sexual misconduct and potentially to the United States, where he was wanted for publishing classified documents.

Asylum in Warships

Another form of extraterritorial asylum is granted aboard a state’s warships. This type of asylum is rare and is usually offered in cases of extreme danger, where the individual cannot safely disembark in a foreign port. The granting of asylum on warships is based on the principle that a warship is considered an extension of the state’s territory, even when it is in international waters or a foreign port.

Legal Basis

The legal basis for granting asylum on warships is derived from the principle of sovereign immunity, which protects a state’s warships from the jurisdiction of foreign states. However, the practice of granting asylum on warships is not explicitly regulated by international law and is typically governed by customary practices and bilateral agreements between states.

Examples

A notable example of asylum granted on a warship occurred in 1986 when a group of Chinese students sought refuge aboard the USS Midway, a U.S. Navy aircraft carrier, during the Tiananmen Square protests. The students were later allowed to disembark in a safe third country, avoiding persecution in China.

Temporary Asylum

Temporary asylum is a provisional form of protection granted to individuals who are fleeing immediate danger but may not qualify for full refugee status. This type of asylum is typically granted in situations of mass displacement, such as during armed conflicts or natural disasters, where the host country provides shelter until it is safe for the individuals to return home.

Legal Basis

The legal framework for temporary asylum varies by country and is often based on domestic laws and regulations. While temporary asylum is not specifically addressed in international treaties, it is recognised as a humanitarian measure that allows states to respond to urgent situations without committing to long-term protection.

Examples

During the Syrian Civil War, many European countries granted temporary asylum to Syrian refugees fleeing the conflict. This form of protection allowed Syrians to stay in host countries until the situation in their home country stabilised, with the understanding that they would return once it was safe to do so.

Conclusion

Asylum is a vital mechanism in international law that provides protection to individuals facing persecution, conflict or other serious threats. The various types of asylum—territorial, extraterritorial, diplomatic and temporary—each serve different purposes and are governed by different legal principles. While territorial asylum is the most common and widely recognised form, extraterritorial and diplomatic asylum are more complex and often involve delicate diplomatic considerations.