asylum

Question 1

Definition:

Answer 1

“To provide shelter and protection by a host state to a citizen of another state, is called asylum.”

The grant of asylum is an old international doctrine. But lacking general rules for its regulation in the premises of international law.

Question 2

Explanation

Answer 2

Asylum is the extension of shelter and protection to an alien by a sovereign in case where there is a danger to the life of the alien or he is in fear of being prosecution in his state by the his opponent government due to the divergent political, social or religious views as between him and his government.

Question 3

The philosophy behind asylum is

Answer 3

the generally accepted international rule that each state is sovereign in its territorial jurisdiction. No other state has a right of jurisdiction on the territory of any state.
Asylum is granted in consideration of national security because the rebel of today may be the ruler of future. So, if he is not given the asylum the relations may become adverse if the person, seeking asylum, comes in power in future.

Question 4

Asylum is opposite to

Answer 4

extradition.

In which case the person is not granted the asylum but is handed over to the requesting state.

Question 5

there is no generality of rules on the subject of asylum

Answer 5

there are certain declarations and customs which stress on fact that every person should be given asylum.

Question 6

the grant of asylum is dependent totally

Answer 6

on the discretion of the granting state.

Question 7

Kinds of Asylum: -

Answer 7

There are following two kinds of asylum;

Territorial Asylum, and Extra-territorial Asylum

Question 8

Territorial Asylum

Answer 8

1. Territorial Asylum: - The grant of asylum by a state on its own territory is said to territorial asylum. As for as, every state has exclusive right of control and jurisdiction on its territory, so it the discretion of that state weather to extradite the person or to grant asylum to him. Because every state has territorial sovereignty over all persons, on its territory, whether they are its subject or aliens.

Question 9

Extra-territorial Asylum

Answer 9

2. Extra-territorial Asylum: - The grant of asylum by a state outside its own territory is said to be extra-territorial asylum. In other words the grant of asylum on places not forming its physical territory, is said to be extra-territorial asylum.

Question 10

Extra-territorial asylum may be given at any of the following places:

Answer 10

i. Asylum in legation or Diplomatic Asylum
ii. Asylum in consulates
iii. asylum in warships
iv. asylum in merchant vessels
v. asylum in the premises of international institutions

Question 11

i. Asylum in legation or Diplomatic Asylum

Answer 11

The grant of asylum by a state in its embassy premises situated in foreign state, is said to be asylum in legation or diplomatic asylum. It is so because the embassy premises are considered to be excluded from the territorial jurisdiction of the state where it is situated.

Question 12

ii. Asylum in consulates

Answer 12

In consulates also the asylum may be granted to any person in the same way as in the case of asylum in legation premises.

Question 13

iii. asylum in warships

Answer 13

Asylum may also be granted in warships, because men of war and public vessels of a foreign are exempted from the jurisdiction of the state in whose ports or waters may be found. Rather, they are under the jurisdiction of the flag state.

Question 14

iv. asylum in merchant vessels

Answer 14

In merchant vessels the asylum cannot be given except where there is a treaty between the states. The reason that merchant vessels cannot grant asylum is that, they are not excluded from the jurisdiction of the state in whose waters or ports it is found.

Question 15

v. asylum in the premises of international institutions

Answer 15

Asylum may also be granted in extreme danger to life in the premises of international institutions.

Question 16

Asylum Case (Colombia v Peru)

Answer 16

Facts:The Colombian government gave asylum to a Peruvian citizen, Haya de la Torre, in its embassy. It claimed it had a right to do this both under agreements between the states and in a local custom in the Latin American states.

Question 17

issue and decision

Answer 17

Can the Colombian government offer asylum under local custom?
No such local custom exists sufficient to be binding at international law.

Question 18

reasons

Answer 18

The Court held that the party which relies on a custom of this kind has the burden of establishing that the custom exists in such a way that it has become binding on the other party, through constant and uniform usage of the states.

On the facts, very few states had ratified the conventions which Colombia relied on and there was significant discrepancy in the practice of asylum. Because of this, the Court was unable to find a custom which met the standard in the North Sea Continental Shelf case.

Question 19

Ratio

Answer 19

A party which claims a custom exists must prove that the custom was established in such a manner that it has become binding on the other party.