Art.
14 of the Universal Declaration of Human Rights of 1948, recognize the
ASYLUM
Asylum means the protection of refuge granted by a state on its territory or
premises under its control to a person who comes to seek such protection or
refuge. Obviously, asylum linked with extradition in as much as asylum stops
where extradition or rendition begins.
The purpose of asylum is to accord protection to a person and to bring him under
the jurisdiction of the granting state where as extradition aims at surrendering or
returning of the offender to the state where he is alleged to have committed the
offence.
Therefore, asylum stops when the granting state decides to extradite the offender,
therefore, the concept of asylum and extradition are opposite to each other.
Law on Asylum
Asylum is being practised by the state since a long time either because it is
referred to in some extradition treaties or is municipal laws. Sometimes, it is also
granted without any formal legal basis. However, the concept of asylum has still
not acquired the necessary clarity. Practice of states is insufficient to constitute it
that type of custom which international law required to call the practice which as a
customary international law. This reason alone led to the international law
commission to include the topic of asylum in its provisional list for codification. The
assembly in 1959 required the commission as soon as it considers advisable, to
undertake the codification of the principles and rules of international law relating
to the right of asylum. According in 1962 the commission decided to include the
topic of asylum in its programme (but without selling any date for the start of its
consideration). In the absence of any law, the topic at present is governed mainly
on the basis of the state practice and judicial decisions.
Right of Asylum
The offender has no right of asylum. However, on this issue certain international
instruments are worth examining.
right of everyone to seek and enjoys in other countries asylum from prosecution. It
being a declaration and not a treaty, does not bind the States.
In the year 1967, U.N General Assembly adopted a declaration on
Territorial Asylum. It, inter alia, declared that a person seeking asylum from
persecution should not be rejected at the frontier. If he has already entered the
territory in which he seeks asylum, he should not be expelled or compulsorily
returned. The declaration also contains a caveat to the effect that asylum ought
not to be granted to any person, with respect to whom there are well founded
reasons for considering that he has committed a crime against peace, war crime or
crime against humanity. On this subject of Territorial Asylum U.N. conference was
held in the year 1977. However, consensus could not be achieved at the
conference.
On the issue of grant of refuge, law relating to the refugees is more
certain. Art 31, 32 & 33 of the refugee convention 1951 gives expression to the
principle of non- refoulement which signifies non rejection at the frontier. The
Refugee Convention prohibits the State parties from expelling or returning
(refouler) a refugee in any manner what so ever to the frontiers of territories
where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
Kinds of Asylum: Asylum is of two kinds, namely territorial and extra-territorial
(diplomatic) asylum.
1) Territorial Asylum: Territorial asylum is granted by a State on its territory.
Territorial asylum is an attribute of the territorial sovereignty, of the
granting State. Art 1 of the Convention on ‘Territorial Asylum’ adopted at
Caracas on 28th March, 1954 recognises that every State has the right, in
the exercise of its sovereignty, to admit any person into its territory.
2) Extra-Territorial or Diplomatic Asylum: Extra territorial or diplomatic
asylum is the refuge granted to offenders by a State within the precincts of
its embassies or legations abroad. In Asylum case involving Columbia and
Peru, ICJ has drawn a distinction between territorial asylum and diplomatic
asylum in the following words.
 In the case of extradition (territorial Asylum), the refugee is within the
territory of the State of refuge. A decision with regard to extradition
implies only the normal exercise of the territorial sovereignty; the refugee
is outside the territory of the State where the offence was committed, and
a decision which granted him asylum in no way derogates from the
sovereignty of the State. In the case of diplomatic asylum, the refugee is
within the territory of the State where the offence was committed. A
decision to grant diplomatic Asylum involves derogation from the
sovereignty of that State. It withdraws the offender from the jurisdiction of
the territorial State and constitutes an intervention in matters which are
exclusively within the competence of that State. Such derogation from the
territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.
The grant of diplomatic Asylum is an exceptional measure. Accordingly, the
offenders have no right of diplomatic Asylum. However, diplomatic Asylum
may be granted in exceptional cases which are as follows:
(i) As a temporary measure, to individuals physically in danger from
mob disorder or mob rule, or where the fugitive is in peril because
of extreme political corruption in the Local State, the justification
being presumably that by the grant of Asylum, an urgent threat is
temporarily tided over.
(ii) Where there is a binding local custom, long recognised, that such
diplomatic Asylum is permissible.
(iii) Under special treaty between the territorial State and the State
which is represented by the legislation concerned. (Generally for
political offenders only)
It is therefore, beyond all doubts that humanitarian considerations under
lie the grant of diplomatic Asylum. The practice of States permits
diplomatic Asylum if political considerations under lie the grant of such
Asylum.
3) Asylum in Consulates: rules regarding asylum in consulates are similar to
that of asylum in legal premises.
4) Asylum in the premises of International Institution: there is no general
right of the international institutions (United Nation and its specialised
agencies) to grant asylum to offenders. There is nothing in international
law to prevent United Nation and its specialised agencies from granting
refuse to person facing imminent threat to their life. If U.N. does not act in
such cases, it will lose its importance as a world peace body.
5) Asylum in Warship: Although there is difference of opinion among jurists
on the issue of grant of asylum in warship, they seem to agree on the
proposition that asylum may be grated in warship only on humanitarian
grounds in case where there is extreme danger to the life of the individuals
seeking asylum.
6) Asylum in Merchant Vessels: Merchant Vessels cannot grant asylum to
local offenders because they are not exempted from local jurisdiction.
Asylum and India
India in the year 1955 gave territorial asylum to Dalai Lama and his followers
who were opposed from the repressive policies of China. Although their
asylum was criticised by China on the ground that India by granting asylum has
interfered in its internal affairs, India was competent enough to do so because
of the rule of territorial Sovereignty.
India does not recognise the Extra-Territorial asylum.
It is clear from the circular issued to all diplomatic missions in India on Dec 30,
1967 and also from the statement of Indian delegate Mr. Sayid Muhammad on
Nov 3, 1975 in the sixth committee on the item concerning diplomatic asylum.
However, it gave diplomatic asylum to late king Tribhuvan of Nepal when he
sought asylum at the height of the Reva revolt against him. When the soviet
defector Aziz Oulougzade took refuge in the American Embassy in India, it was
granted to him temporarily. On protest, he was surrounded to the Indian
authorities.