Asylum under International Law: Meaning, Types, Refugee Protection and Non-Refoulement
A person who faces persecution in his or her own country may seek protection in another State. That protection is commonly described as asylum. The idea appears simple, but asylum under international law involves several distinct bodies of law. The right to seek asylum, refugee status, territorial asylum, diplomatic asylum and the principle of non-refoulement are closely related, yet they do not mean the same thing.
Modern asylum law is particularly connected with international refugee law. The 1951 Convention relating to the Status of Refugees and its 1967 Protocol establish the principal international framework for determining who qualifies as a refugee and what protection follows from that status. Human-rights treaties may provide additional protection against removal even where a person does not satisfy the refugee definition.
In brief: international law recognizes a right to seek and enjoy asylum from persecution, but there is no single universal rule requiring every State to grant asylum to every person who asks for it. Where a person qualifies as a refugee, however, treaty obligations become much more specific. The principle of non-refoulement may prohibit return to a territory where the person's life or freedom would be threatened, while international human-rights law may independently prohibit removal where there is a danger of torture or other legally prohibited treatment.
The subject therefore lies at the meeting point of State sovereignty and individual protection. A State ordinarily controls admission to and residence within its territory, but that authority is exercised within the limits imposed by the treaties and other rules of international law applicable to it. This illustrates the practical importance of treaties and other sources of international law.
What is asylum?
Asylum is protection granted by a State to a person who seeks safety from persecution or another serious threat in the country from which he or she has fled.
In its ordinary international-law sense, asylum allows a person to remain under the protection of a State rather than being sent back to a place where the relevant legal conditions for protection are satisfied.
The concept should not be reduced to permission to enter a country. Protection may involve admission to territory, access to a procedure in which the protection claim can be examined, protection against unlawful return, permission to remain and, where refugee status is established, the rights attached to that status under the applicable legal regime.
The precise legal consequences depend upon the source of protection. A person may receive protection under the Refugee Convention, a regional refugee instrument, domestic asylum law, a temporary-protection scheme or international human-rights law. These legal bases may overlap, but they should not be treated as interchangeable.
Is there a right to asylum under international law?
Article 14(1) of the Universal Declaration of Human Rights states that everyone has the right to seek and to enjoy in other countries asylum from persecution.
The wording is important. Article 14 speaks of the right to seek and enjoy asylum. It does not provide an unconditional universal right under which every individual may compel a particular State to grant asylum.
The distinction reflects the historical development of the provision. The granting of territorial asylum remained closely connected with State sovereignty, while the Declaration recognized the individual's right to seek protection from persecution.
Article 14(2) also provides that the right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
The absence of a universal right to demand asylum does not mean that States are always free to return an applicant wherever they choose. Refugee law and human-rights law impose separate restrictions on removal. In many cases, the decisive legal question is therefore not whether international law compels a State to confer a status called “asylum,” but whether international law prohibits return to the proposed destination.
Regional treaties may provide a stronger right to asylum
The position under universal international law should be distinguished from certain regional human-rights systems.
Article 22(7) of the American Convention on Human Rights recognizes a right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the State and applicable international conventions, where the person is being pursued for political offences or related common crimes.
Article 12(3) of the African Charter on Human and Peoples' Rights also recognizes the right of an individual, when persecuted, to seek and obtain asylum in other countries in accordance with the laws of those countries and international conventions.
It is therefore correct to say that there is no unconditional universal right compelling every State to grant asylum, while recognizing that regional treaties may create additional rights and obligations for States and individuals falling within those legal systems.
The legal framework governing asylum
There is no single international instrument containing the whole law of asylum. The applicable rules come from several sources.
The Universal Declaration of Human Rights
Article 14 of the Universal Declaration provides the starting point for the modern international recognition of asylum as a human-rights concern. Adopted in 1948, the Declaration placed the right to seek and enjoy asylum within the broader international framework of human rights.
The 1951 Refugee Convention
The Convention relating to the Status of Refugees was adopted in 1951. It defines the term “refugee,” establishes important standards for the treatment of refugees and contains the central treaty rule of non-refoulement in Article 33.
The Convention does considerably more than regulate protection against removal. It addresses subjects including access to courts, employment, education, freedom of movement, identity documents, travel documents, expulsion and naturalization.
The 1967 Protocol
The original 1951 Convention refugee definition was linked to events occurring before 1 January 1951. The 1967 Protocol removed that temporal restriction for persons falling within the Convention definition and made the refugee framework capable of applying to new refugee situations arising after that date.
Article I(3) of the Protocol provides that it is to be applied without geographic limitation. It nevertheless preserves, unless extended, certain geographic declarations previously made by States that were already parties to the Convention under Article 1B(1)(a).
The Protocol is legally connected with the Convention but is a separate treaty. The two instruments were adopted at different times but together form the central universal treaty framework of modern refugee protection.
The Declaration on Territorial Asylum
The United Nations General Assembly adopted the Declaration on Territorial Asylum in Resolution 2312 (XXII) on 14 December 1967.
The Declaration develops principles connected with Article 14 of the Universal Declaration and concerns asylum granted by a State within its territory.
It was adopted as a General Assembly declaration rather than as a universal treaty. It therefore should not be cited as though its provisions, merely by reason of the Declaration itself, constitute treaty obligations binding on every State.
International human-rights treaties
Human-rights treaties may prohibit removal independently of refugee status. Article 3 of the Convention against Torture, for example, prohibits a State Party from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.
This protection is particularly important because it can apply even where an individual does not qualify for refugee status under the 1951 Convention.
Territorial asylum
Territorial asylum is the ordinary form of asylum. It concerns protection given by a State to a person who is within its territory or otherwise falls within its territorial protection process.
Suppose a political activist leaves State A because of persecution and enters State B. If State B permits the person to remain under its protection, the situation is one of territorial asylum.
The grant of territorial asylum is closely connected with sovereignty. A State ordinarily determines who may enter and remain within its territory, subject to the international obligations binding upon it.
The 1967 Declaration on Territorial Asylum reflects this relationship. It treats asylum granted by a State in the exercise of its sovereignty as something that should be respected by other States. Modern refugee and human-rights law, however, place important restrictions on the ability of States to remove persons where non-refoulement or another applicable protection prevents return.
Diplomatic asylum
Diplomatic asylum arises where a State gives protection to a person outside the ordinary setting of territorial asylum, most commonly in diplomatic premises situated within the territory of another State. Some regional asylum instruments also deal with protection in other specially recognized places.
Diplomatic asylum should not be confused with diplomatic inviolability.
Article 22 of the Vienna Convention on Diplomatic Relations provides that the premises of a diplomatic mission are inviolable and that agents of the receiving State may not enter them without the consent of the head of mission.
This does not convert an embassy into the territory of the sending State. The premises remain situated within the territory of the receiving State; inviolability restricts the receiving State's exercise of enforcement authority within them.
Nor does the Vienna Convention itself create a general right to grant diplomatic asylum. Article 41(3) also provides that mission premises must not be used in a manner incompatible with the functions of the mission as laid down in the Convention, other rules of general international law or applicable special agreements.
Whether diplomatic asylum is legally available must therefore be considered separately from the inviolability of diplomatic premises. Treaty rules, regional custom and other applicable international law may become decisive.
The ICJ Asylum Case: Colombia v. Peru
The leading international case concerning diplomatic asylum is Asylum (Colombia/Peru), decided by the International Court of Justice on 20 November 1950.
The dispute concerned VÃctor Raúl Haya de la Torre, a Peruvian political leader. Colombia granted him asylum in its embassy in Lima after Peruvian authorities sought him in connection with a military rebellion.
Colombia argued, among other things, that as the State granting asylum it was entitled to characterize the nature of Haya de la Torre's offence unilaterally and definitively, with that characterization binding upon Peru.
The Court rejected that claim. It held that Colombia had not established a treaty or customary rule giving it such a power against Peru. In considering the alleged regional custom, the Court found that the practice relied upon did not establish the asserted binding rule.
The case is important beyond diplomatic asylum. It remains a useful illustration of the need to prove sufficiently established State practice accepted as law where a party relies upon a regional customary rule.
It therefore connects directly with the study of customary international law.
Haya de la Torre and the termination of diplomatic asylum
The dispute continued after the 1950 judgment. A further case, Haya de la Torre (Colombia v. Peru), was decided by the International Court of Justice on 13 June 1951.
In that judgment, the Court held that Colombia was not under an obligation to surrender Haya de la Torre to the Peruvian authorities. At the same time, the diplomatic asylum could not simply be treated as legally regular despite the findings made in the earlier judgment.
The litigation illustrates the unusual legal position created by diplomatic asylum. In territorial asylum the protected person is ordinarily within the territory of the protecting State. Diplomatic asylum, by contrast, places diplomatic inviolability, the authority of the territorial State and any applicable regional asylum rules in direct interaction.
Diplomatic asylum in Latin America
Diplomatic asylum has developed particularly strongly in Latin American treaty practice.
The Convention on Diplomatic Asylum, adopted at Caracas on 28 March 1954, regulates diplomatic asylum among States Parties to that regional treaty.
The Convention deals with matters including the places in which diplomatic asylum may be granted, the political character of the offence, urgency, safe conduct and relations between the State granting asylum and the territorial State.
This regional development should not be transformed into a universal rule. States outside the relevant treaty framework do not become bound by the Caracas Convention merely because diplomatic asylum is recognized within that regional system.
What is the difference between a refugee and an asylum seeker?
The two expressions are often used interchangeably in ordinary conversation, but they describe different legal positions.
An asylum seeker is generally a person who has sought, or intends to seek, international protection and whose claim has not yet been finally determined.
A refugee is a person who satisfies the applicable legal definition of refugee. Formal recognition does not create refugee status in the substantive sense. Refugee recognition is declaratory: it officially confirms that the person meets the legal criteria for refugee status.
This distinction matters because an asylum seeker may already be a refugee even though the authorities have not yet completed the process of recognizing that status.
Not every asylum seeker, however, will ultimately be found to satisfy the applicable refugee definition. A claim may fail because the required fear of persecution has not been established, because the feared harm lacks the necessary connection with a Convention ground, because effective national protection is available, or because another provision of the applicable law prevents recognition.
Who is a refugee under the 1951 Convention?
Article 1A(2) of the Refugee Convention contains the central refugee definition. Read together with the 1967 Protocol, it covers a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of nationality and is unable or, owing to that fear, unwilling to avail himself or herself of that country's protection.
For a stateless person, the definition refers instead to the country of former habitual residence.
Several elements must therefore be examined. The applicant must ordinarily be outside the relevant country, must have the required well-founded fear, the feared harm must amount to persecution, and the persecution must have the required connection with at least one Convention ground.
What does “well-founded fear” mean?
The expression combines the individual's fear with an assessment of whether that fear has an adequate factual basis.
An asylum claim is therefore not determined merely by asking whether the applicant says that he or she is afraid. Nor does international protection require the applicant to wait until persecution has actually occurred.
Past experiences may provide important evidence, but decision-makers also examine current conditions, threats, patterns of treatment and the applicant's individual circumstances.
The assessment is forward-looking. The central question is whether return would expose the applicant to the relevant risk of persecution.
What amounts to persecution?
The Refugee Convention does not provide one exhaustive definition of “persecution.”
The concept generally concerns serious violations of fundamental rights or a combination of harmful measures sufficiently grave to require international protection. Threats to life or physical liberty are clear examples, but persecution is not confined to physical violence.
Depending upon the circumstances, arbitrary detention, torture, severe discriminatory restrictions, serious religious repression, sexual or gender-based violence, or other grave interference with fundamental rights may form part of a persecution claim.
Context matters. Measures that appear comparatively less serious when viewed separately may become persecutory when they form part of an accumulated pattern of serious discrimination, coercion or deprivation.
Must persecution come from the government?
Persecution under the Refugee Convention is not generally understood as being confined to harm directly inflicted by government officials.
Under established refugee-law interpretation, persecution by non-State actors may satisfy the refugee definition where the State is unable or unwilling to provide the protection required and the other elements of Article 1A(2), including the necessary connection with a Convention ground, are present.
Threats from an armed group, militia, family, criminal organization or another private actor may therefore become legally relevant where the applicant faces serious persecution and meaningful national protection is unavailable.
The assessment remains dependent upon the facts of the case and the applicable refugee-law framework.
The five Convention grounds
The 1951 Convention identifies five grounds: race, religion, nationality, membership of a particular social group and political opinion.
The feared persecution must have the required connection with at least one of these grounds for refugee status under Article 1A(2).
The categories may overlap. A person may, for example, face persecution because of both ethnicity and perceived political opinion. The legal inquiry concerns the reasons for the persecution rather than forcing each case into only one category.
The ground of “membership of a particular social group” has generated considerable interpretation in refugee law. Its application is fact-sensitive and should not be reduced to the proposition that any collection of people facing danger automatically constitutes a particular social group for Convention purposes.
Does war or generalized violence automatically make someone a Convention refugee?
Not necessarily under the 1951 Convention definition.
A person fleeing armed conflict may qualify as a Convention refugee where the feared persecution is connected with race, religion, nationality, membership of a particular social group or political opinion. The existence of war does not prevent the Convention from applying.
General danger arising from conflict, however, does not automatically establish the required Convention nexus in every individual case.
Regional refugee instruments have responded to this limitation by adopting broader definitions in certain parts of the world.
The broader refugee definition in Africa
The 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa incorporates the basic 1951 Convention definition and adds a broader regional category.
Article I(2) extends refugee protection to certain persons compelled to leave their country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of the country of origin or nationality.
This broader formulation is particularly important in large-scale displacement caused by conflict and serious public disorder. It applies within the regional legal framework of the African Convention rather than replacing the 1951 refugee definition universally.
The Cartagena Declaration in Latin America
Another important regional development is the 1984 Cartagena Declaration on Refugees.
The Cartagena Declaration recommends a broader concept of refugee that includes persons who flee because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflict, massive violations of human rights or other circumstances that have seriously disturbed public order.
The Cartagena Declaration is not a global treaty equivalent to the 1951 Refugee Convention. Its broader approach has nevertheless had substantial influence in Latin American refugee law and has been incorporated, in differing forms, into the domestic legal systems of a number of States in the region.
The principle of non-refoulement
Non-refoulement is one of the central protections in international refugee law.
Article 33(1) of the Refugee Convention provides that a Contracting State must not expel or return a refugee in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened because of race, religion, nationality, membership of a particular social group or political opinion.
The rule is concerned with the consequences of removal. A State cannot avoid the legal protection merely by describing a measure as deportation, expulsion or another form of transfer if its effect is return to the prohibited danger.
The principle is particularly important for asylum seekers because removal before a protection claim has been properly examined may defeat the protection altogether. Procedures must therefore be capable of identifying persons who would face a legally relevant risk before removal occurs.
Does Article 33 contain exceptions?
Yes. Article 33(2) contains specific exceptions to the Refugee Convention's non-refoulement protection.
It provides that the benefit of Article 33(1) may not be claimed by a refugee where there are reasonable grounds for regarding that person as a danger to the security of the country in which he or she is present, or where the refugee, having been convicted by final judgment of a particularly serious crime, constitutes a danger to the community.
This should not be understood as giving States an unrestricted power to return any refugee who has committed an offence.
The conditions stated in Article 33(2) must themselves be satisfied. Moreover, the loss of protection under Article 33(1) does not necessarily eliminate protection arising independently under international human-rights law.
Non-refoulement under the Convention against Torture
Article 3 of the Convention against Torture provides a separate and particularly important protection.
It prohibits a State Party from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of torture.
Unlike Article 33(2) of the Refugee Convention, Article 3 of the Convention against Torture contains no security or serious-crime exception permitting transfer to the danger of torture.
This distinction has important practical consequences. A person excluded from refugee status because of serious criminal conduct may still be protected against transfer to a State where the legal test for danger of torture is satisfied.
Protection against removal and entitlement to refugee status are therefore separate questions.
Is asylum the same as non-refoulement?
No. Asylum and non-refoulement are related but legally distinct.
Asylum concerns the protection and status provided by a State to a person who seeks refuge. Non-refoulement is principally a restriction on removal: it determines whether the State may send a person to a particular territory where the legally relevant danger exists.
This distinction explains why a person may be protected against return without necessarily receiving refugee status or permanent asylum. Article 3 of the Convention against Torture is an important example. A person who does not qualify as a refugee may nevertheless be protected from removal where there are substantial grounds for believing that he or she would be in danger of torture.
Conversely, recognition as a refugee carries a legal status and a range of protections extending beyond the prohibition of refoulement.
Can refugees be punished for illegal entry?
The Refugee Convention recognizes that people escaping persecution may not be able to obtain passports, visas or other ordinary travel authorization before reaching safety.
Article 31(1) provides qualified protection against penalties for illegal entry or presence. It applies to refugees coming directly from a territory where their life or freedom was threatened in the sense of Article 1 who enter or are present without authorization, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The provision should therefore not be simplified into the statement that refugees can never be subject to immigration rules. Its protection depends upon the conditions contained in Article 31.
Can a recognized refugee be expelled?
Article 32 of the Refugee Convention deals with refugees lawfully present in the territory.
A Contracting State must not expel such a refugee except on grounds of national security or public order. The Convention also requires a decision reached in accordance with due process of law and provides procedural protections, subject to its stated national-security qualification.
Expulsion under Article 32 must also be distinguished from refoulement under Article 33.
A State may in some circumstances have grounds to require a refugee to leave its territory but still be prohibited from sending that refugee to a particular country where Article 33 or another non-refoulement obligation would be violated.
Who may be excluded from refugee protection?
Refugee law was not designed to provide Convention protection to persons responsible for certain particularly serious acts.
Article 1F of the Refugee Convention contains exclusion clauses. They apply where there are serious reasons for considering that the person has committed a crime against peace, a war crime or a crime against humanity; has committed a serious non-political crime outside the country of refuge before admission as a refugee; or has been guilty of acts contrary to the purposes and principles of the United Nations.
Exclusion is different from finding that the applicant lacks a well-founded fear of persecution. A person may otherwise satisfy the refugee definition but fall outside Convention protection because an exclusion clause applies.
Exclusion from refugee status also does not automatically authorize torture, arbitrary killing or another transfer prohibited by applicable human-rights law.
When can refugee status cease?
Refugee protection is not necessarily permanent in every case.
Article 1C contains the Convention's cessation clauses. They address circumstances such as voluntary re-availment of national protection, voluntary reacquisition of nationality, acquisition of a new nationality accompanied by its protection, voluntary re-establishment in the country previously left, and the cessation of the circumstances in connection with which refugee status arose.
The changed-circumstances clauses require careful application. They should not be treated as allowing refugee status to end merely because conditions in the country of origin have temporarily improved.
Cessation should be distinguished from exclusion and cancellation. They address different legal questions.
Exclusion concerns whether a person should receive the benefit of refugee protection because of conduct described in Article 1F. Cessation concerns circumstances in which a person who was a refugee no longer falls within the Convention's protection under Article 1C.
How is an asylum claim decided?
The Refugee Convention does not establish one detailed asylum procedure that every State must reproduce in identical form.
National systems therefore differ. An application may initially be decided by an immigration authority, refugee commission, ministry or another specialized body, with administrative or judicial review available under domestic law.
The central purpose of refugee-status determination is to establish whether the applicant satisfies the applicable refugee definition or qualifies for another form of international protection.
The process normally requires examination of the applicant's account, supporting evidence where available, relevant information about the country of origin and the legal requirements of the protection claimed.
Refugee claims present particular evidentiary difficulties. A person escaping persecution may have had little opportunity to obtain official records, police reports or other documents before leaving the country. The absence of documentary evidence is therefore not, by itself, a sufficient reason to reject a claim.
The applicant is expected to give a truthful and sufficiently detailed account and to provide reasonably available evidence. The decision-maker must assess that account together with relevant country-of-origin information and any other material available. Where the applicant has made a genuine effort to substantiate the claim and the account is otherwise credible, refugee-status determination may require appropriate application of the benefit of the doubt.
What is the role of UNHCR?
The Office of the United Nations High Commissioner for Refugees performs an important international protection function.
Under Article 35 of the Refugee Convention, Contracting States undertake to cooperate with UNHCR in the exercise of its functions and, in particular, to facilitate its duty of supervising the application of the Convention.
The 1967 Protocol contains a corresponding cooperation provision.
In some countries State authorities conduct refugee-status determination themselves. In other settings UNHCR may conduct status determination under its mandate or perform other protection functions, depending upon the legal and institutional circumstances.
UNHCR does not replace States as the ordinary decision-makers in national asylum systems, but it possesses a specific international mandate concerning refugees and international protection.
Asylum during mass influx
Individual refugee-status determination can become difficult when very large numbers of people cross a border within a short period because of war, widespread violence or another major crisis.
International and regional practice has therefore developed mechanisms capable of providing protection without requiring every case to pass through a lengthy individualized procedure at the outset.
One approach is prima facie recognition, under which refugee status may be recognized on the basis of readily apparent circumstances affecting an identifiable group where the applicable legal criteria are satisfied.
Another approach is temporary protection. Temporary-protection arrangements have been used as emergency mechanisms where large-scale displacement creates urgent protection needs.
Temporary protection is not a single universal legal status defined identically in every country. Its source, duration, rights and relationship with ordinary refugee-status determination depend upon the particular regional or domestic regime.
Is temporary protection the same as refugee status?
No.
Temporary protection is commonly used as an emergency or interim response, particularly during mass displacement. Refugee status is based upon satisfaction of a legal refugee definition.
Some persons receiving temporary protection may also qualify as refugees. Others may receive temporary protection without an individual determination of Convention refugee status.
The existence of a temporary-protection scheme should therefore not be treated as proof that refugee law has ceased to apply. The relationship between temporary protection and refugee status depends upon the system concerned.
Asylum and extradition
An asylum claim may arise at the same time as an extradition request.
Suppose State A asks State B to extradite a political opponent for an alleged criminal offence. The individual argues that the criminal charge is a pretext for persecution.
The requested State may then have to examine several different legal questions. It may need to determine whether the offence is extraditable, whether the extradition treaty contains a political-offence or discrimination clause, whether the person qualifies for refugee protection, and whether surrender would violate non-refoulement or another human-rights obligation.
Asylum does not provide a general immunity from genuine criminal prosecution. Equally, the existence of an extradition request does not extinguish applicable refugee and human-rights protections.
This relationship is examined in greater detail in the separate discussion of extradition under international law.
Asylum and deportation
Asylum and deportation are not opposite names for the same legal process.
Asylum concerns protection. Deportation concerns removal under domestic immigration or related law.
A State may decide under its immigration legislation that a foreign national has no ordinary right to remain. Before carrying out deportation, however, it may still have to determine whether refugee law, the Convention against Torture or another applicable rule prohibits removal to the proposed destination.
A person may therefore be removable in principle but non-removable to a particular State because of non-refoulement.
Refugees and migrants are not the same legal category
Migration takes place for many reasons. People cross borders for employment, education, family life, economic opportunity and numerous other purposes.
Refugee status is based upon international-protection criteria.
Economic hardship by itself does not automatically make a person a refugee under the 1951 Convention. At the same time, a person's economic circumstances do not prevent refugee status where the legal elements of persecution are independently satisfied.
Real movements of people can involve mixed motives. The task of asylum law is to determine whether the applicant meets the applicable protection criteria rather than relying solely upon broad labels such as “migrant.”
Asylum and statelessness
A stateless person and a refugee are also different legal categories.
Statelessness concerns whether a person is considered a national by any State under the operation of its law. Refugee status concerns the need for international protection under the applicable refugee definition.
A stateless person may also be a refugee, but statelessness alone does not automatically establish refugee status.
The Refugee Convention expressly accommodates stateless applicants by referring to the country of former habitual residence when applying the refugee definition.
Does “political asylum” have a separate universal meaning?
The expression “political asylum” is frequently used to describe asylum sought because of political persecution.
It should not be treated as though international law contains one completely separate universal legal status bearing that exact name.
Political opinion is one of the five grounds contained in the Refugee Convention. A person persecuted because of actual or attributed political opinion may therefore qualify as a refugee if the remaining requirements are satisfied.
Political considerations are also prominent in the historical law of diplomatic asylum, particularly in Latin America. That regional institution should be distinguished from ordinary Convention refugee status.
Can a person accused of a crime claim asylum?
Yes. The existence of a criminal accusation does not by itself determine whether the person has a valid claim to international protection.
The authorities must distinguish legitimate prosecution from persecution disguised as prosecution.
A genuine prosecution for an ordinary criminal offence will not normally become persecution merely because the accused opposes the government bringing the case.
The position may be different where the purported criminal process is discriminatory, fabricated, grossly disproportionate or otherwise connected with persecution for a Convention reason.
Serious criminal conduct may also raise the Refugee Convention's exclusion provisions and, after recognition, other provisions dealing with security and serious crime.
Can an asylum seeker choose any country?
Article 14 of the Universal Declaration recognizes the right to seek asylum in other countries, but international refugee law does not create a simple universal rule giving every asylum seeker an unlimited right to select whichever State he or she prefers for permanent settlement.
States have developed different rules concerning responsibility for examining asylum claims, safe third countries, transfer arrangements and admissibility. Their legality depends upon the applicable regional, treaty, human-rights and domestic framework.
Whatever procedural arrangement is used, a State must still comply with its applicable non-refoulement obligations. Transfer to another country cannot lawfully be used as an indirect means of exposing a person to prohibited return.
Asylum and diplomatic protection
Diplomatic asylum should not be confused with diplomatic protection.
Diplomatic protection is a doctrine of international law through which a State may, subject to the relevant legal conditions, invoke responsibility in relation to injury suffered by one of its nationals.
Diplomatic asylum concerns protection given to an individual, traditionally in diplomatic premises or another place recognized under the applicable regional rules.
The similarity of the terminology can therefore be misleading. The two institutions address different legal relationships.
What rights does the Refugee Convention provide?
Recognition as a refugee is not merely protection against immediate deportation.
The Convention creates a broader legal status and prescribes standards of treatment in a number of areas. Depending upon the particular provision and the refugee's relationship with the State, these include access to courts, employment, education, public relief, social security, freedom of movement, identity documents and travel documents.
Different provisions use different standards of treatment. Some refer to treatment comparable with nationals, others to treatment accorded to aliens generally, and some depend upon lawful presence or lawful stay.
It is therefore inaccurate to state simply that the Refugee Convention gives refugees every right possessed by citizens of the host State. The content of each Convention provision must be examined separately.
What happens after asylum is granted?
International protection may last for many years, but the longer-term objective is often to find a stable solution in which the person no longer lives in continuing uncertainty.
UNHCR traditionally identifies three principal durable solutions: voluntary repatriation, local integration and resettlement.
Voluntary repatriation
A refugee may choose to return to the country of origin where conditions permit return to take place voluntarily and under appropriate circumstances.
Voluntary return should be distinguished from refoulement. A genuinely voluntary decision to return is fundamentally different from forced removal to persecution or another legally prohibited danger.
Local integration
Where return is not feasible, a refugee may establish a long-term life in the host State. Local integration involves legal, economic and social dimensions and may eventually lead to permanent residence or nationality under domestic law.
Article 34 of the Refugee Convention calls upon Contracting States, as far as possible, to facilitate the assimilation and naturalization of refugees.
Resettlement
Resettlement involves transfer from the country in which a refugee has sought protection to another State willing to admit the person for longer-term protection.
Resettlement should not be confused with the initial right to seek asylum. Refugee status does not automatically create an individual right to demand resettlement in a particular third country.
Territorial asylum and diplomatic asylum: the essential difference
The easiest way to distinguish the two is to ask where and under what legal framework the protection is being given.
In territorial asylum, the person receives protection within the territory of the asylum State in the ordinary sense.
In diplomatic asylum, protection is given in diplomatic or other specially recognized premises situated within the territory of another State, where the applicable rules permit or recognize such asylum.
Territorial asylum forms part of the wider international refugee and protection framework. Diplomatic asylum has a more particular legal history and a strongly developed regional basis in Latin America.
The two should therefore not be presented as though they are universally equivalent alternatives available to every asylum seeker.
Asylum, refugee status and non-refoulement: three different questions
These concepts are easiest to understand when separated.
Asylum concerns protection provided by a State.
Refugee status concerns whether a person satisfies a legal definition that carries specified rights and protections.
Non-refoulement concerns whether a person may lawfully be transferred to a particular place where the relevant danger exists.
A single case may involve all three concepts, but each legal question should be asked separately.
A person may fail to obtain Convention refugee status yet still be protected from removal under the Convention against Torture. Conversely, permission to remain temporarily in a State does not necessarily mean that Convention refugee status has been recognized.
Conclusion
Asylum under international law is best understood as a system of protection involving several distinct legal rules rather than as one isolated doctrine.
Article 14 of the Universal Declaration of Human Rights recognizes everyone's right to seek and enjoy asylum from persecution, but it does not establish an unconditional universal right to compel any particular State to grant asylum. Certain regional human-rights treaties go further and recognize additional rights to seek and obtain or be granted asylum within their respective legal frameworks.
The 1951 Refugee Convention and 1967 Protocol provide the principal universal treaty framework for refugee protection. They identify who qualifies as a refugee, establish standards of treatment and prohibit refoulement to territories where a refugee's life or freedom would be threatened for a Convention reason, subject to the specific provision contained in Article 33(2).
International human-rights law adds another layer. Article 3 of the Convention against Torture independently prohibits transfer to a State where there are substantial grounds for believing that a person would be in danger of torture. This protection does not depend upon formal recognition as a refugee.
Territorial asylum should also be distinguished from diplomatic asylum. Territorial asylum operates within the ordinary protection framework of the asylum State. Diplomatic asylum has a narrower and more distinctive legal basis, illustrated by the ICJ's Asylum and Haya de la Torre cases and by regional treaty practice in Latin America.
The resulting legal framework preserves an important role for State sovereignty while imposing significant limits on removal. States continue to administer their borders and asylum procedures, but refugee treaties, regional instruments and human-rights law determine circumstances in which a person must be protected against return.
Primary authorities and further reading
The principal legal materials for the study of asylum and refugee protection include the Universal Declaration of Human Rights, particularly Article 14; the Convention relating to the Status of Refugees of 1951, particularly Articles 1, 31, 32, 33, 34 and 35; and the 1967 Protocol relating to the Status of Refugees.
The United Nations Declaration on Territorial Asylum, adopted in General Assembly Resolution 2312 (XXII) of 14 December 1967, is useful for understanding the relationship between territorial asylum and State sovereignty. The Convention against Torture, particularly Article 3, provides a separate treaty rule prohibiting removal to a danger of torture.
For diplomatic asylum, the principal judicial authorities include Asylum (Colombia/Peru), Judgment of 20 November 1950, and Haya de la Torre (Colombia v. Peru), Judgment of 13 June 1951. The Vienna Convention on Diplomatic Relations is relevant to the inviolability and proper use of diplomatic mission premises, while the 1954 Caracas Convention on Diplomatic Asylum is an important regional treaty within the Inter-American system.
Regional refugee law should also be consulted, particularly the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and, for Latin American practice, the 1984 Cartagena Declaration on Refugees. The American Convention on Human Rights and the African Charter on Human and Peoples' Rights also contain regional provisions concerning asylum.
These international materials must be read together with the asylum, refugee and immigration legislation applicable in the State concerned. Procedures, evidentiary rules, appeal mechanisms, complementary forms of protection and the legal consequences of recognition differ among national systems.