Development of Asylum Law: 13th Century to 20th Century

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THIS ARTICLE WAS WRITTEN BY PHALGUNI MAHAPATRA, A STUDENT OF HIDAYATULLAH NATIONAL LAW UNIVERSITY.

The world is witnessing revolutionary technological development and weapons of mass destruction are one of the negative consequences of this development. The usage of these weapons by many countries and terrorist organizations has lead to the displacement of large group of people from their home country into neighboring countries. And the dark reality which we are witnessing is that currently number of refugees and displaced people has outweighed the figure that of World Wars. The terms asylum‐seeker and refugee are often confused: an asylum‐seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated.[1]

What is Asylum?

Asylum means the protection or refuge granted by a State on its territory or premises under its control to a person who comes to seek such protection or refuge.[2] The conception of asylum in international law involves two elements[3]:

1. shelter, which is more than merely temporary refuge; and
2. a degree of active protection on the part of the authorities in control of the territory of asylum.

Persons who leave their country on the basis of persecution or apprehensions of persecution and want to be accepted in another country are known as asylum seekers. For getting refugee status it has to be proved that it is well founded fear of persecution which is forcing them to leave their home country. Also, they have to undergo a legal procedure conducted by the host country to decide whether refugee status has to be given or not. However, in the case of mass exodus it it becomes difficult and impossible on the part of the host country to screen individually. For that reason, a ‘group’ is determined as refugee, particularly when ground of fleeing is same, wherby each of them is given the status of refuge. Article 14 of UDHR, 1948[4] states that:

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. this right may not be invoked in the case of prosecution genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Historical Background

Asylum – a word of Greek origin that means ‘what cannot be seized’ – refers to what is inviolable, and as such it invokes a higher power that offers protection.[5] The reluctant or forced movement of people as refugees away from the Kingdom or State of their nationality or residence to another has been an ages old problem.[6] The practice of asylum can be spotted in ancient history. The Kadesh Peace Treaty – concluded in the 13th century BC – between Ramses II and Hatusil III, king of the Hitittas, constitutes the first international treaty that we have evidence of and it contains protection clauses.[7] In nine provisions, the treaty establishes that the exchange of population between the two sovereigns will only take place on condition that neither the individuals themselves nor their families are subject to punishment.[8]

In ancient Greece, refugee used to take shelter in the temple where it was considered that God has taken them under his or her divine power. The institution of asylum was brought into the domain of Public Law by the Greek political organization in polis. Diplomatic relations included the recognition of the right of asylum in international treaties both among the polis as well as between Greece and other peoples.[9]

In Rome, the practice of protection was demonstrated around a temple in honour of God Asylaeus, founded by Romulo and Remo, in order that those outside the law could find refuge. The official faith of the Roman Empire became Christianity and stretched across the Europe, the acceptance of the power of the Church resulted in the process of territorialisation of asylum. The importance of asylum in the Church developed and it tracked its golden age from the twelfth century. With the decline of the Roman Empire and the rise of Christian Europe, territorial asylum again evolved into the practice of intercession by the clergy of the church. Over time, ecclesiastical laws on asylum were codified however with the rise of nation state and the claim of national authorities of the exclusive right to administer justice their influence began to recede. The basis of asylum shifted from the religious sanctity of the place to the sovereignty of the city or state. In the 17^th century, as international opinion converged on the need to suppress criminality, the concept of asylum again developed and the concept of extradition grew in popularity.

The 18^th century witnessed the growth of political asylum, which could be exercised to provide refuge to those guilty of offences termed as “political”. This led to the conflict as to what compromised a political offence. And to counter it international instruments gave definition what does not constitute as a political offence. The Right to Asylum was first incorporated under article 120 of the French Constitution of 24^th June 1793. The article reads as: “the French people give asylum to foreigners who, in the name of liberty, are banished from their homelands, and refuse it to tyrants.”[10] Although positive developments took place however the right to asylum lost its status as a human right and became a state right to either accept or reject the application of a person seeking asylum.

After World War- I

The history of the international concern on organized scale for the refugees and minorities started when the Allied victorious powers after the First World War decided to reorganize the map of Europe on the principle of self-determination of people and for creation of nation-states.[11] The people were not unfamiliar with the phenomenon of refugees, after the First World War the technical meaning was developed which was mainly concerned with distinguishing those groups who had lost the protection of their own state i.e. refugees, as opposed to ordinary migrants, i.e., immigrants. The League of Nations through the actions of the humanitarian organizations like the International Committee of the Red Cross (ICRC) ensured the protection of refugees of the League of Nations by the actions of a humanitarian organization, ICRC’s lobbying resulted in the League belatedly establishing an international programme of material assistance in 1921.[12] The ascription, refugee, as defined in the 1933 Refugee Convention, allocated refugee status according to specific nationalities (eg Russians, Armenians, Assyrians, and Turks) and included the obligation of receiving states to provide material assistance and protection[13]

The League of Nation, established after World War- I, was formed with the primary objective that war should never broke out again and safeguard the principles of Treaty of Versailies.  The dominance of spirit of nationalism was seen during the world wars and according to Manzini, ‘only one state for every nation’. The establishment of nations, it was believed, would ensure that the dynastic squabbling and secret diplomacy which was blamed for the outbreak of the First World War would not be repeated. If each community or group had its own territory, instability would be eliminated. In this sense, refugees were defined in terms of their membership of a nation without a state, or without the protection of their state, and thus, in need of international protection: for example, passports (travel documents) were supplied to Russian refugees, and livelihood support (employment) for Armenian refugees. International assistance was given to nation in the form of settlement sponsorship schemes so that they can give shelter to refugees having ethnic claim.

After World War-II

During the World War-II, the United Nations Relief and Rehabilitation Administration (UNRRA) was established which offered active and substantial assistance to the refugees in Europe and in the Far East during the period 1943 to 1945. The Second World War end up uprooting tremendous numbers of people and so refugee problem aroused. Therefore, to solve the problem United Nations on 15 December 1946, constituted International Refugee Organization (IRO) which took over tackling of refugees from UNRRA.

Preceding the war, the world community after witnessing ten thousands of refugees in Europe consented to scrap the ad hoc group of separate organizations. Therefore after World War-II, the United Nations High Commissioners for Refugees was formed by the United Nations. They gave the UNHCR a three year mandate, believing that the refugee situation could be quickly solved, and thereafter could go back to normal. In fact, the original office had one person, the High Commissioner, with two staff members.[14]

Hence, the concept of asylum can be seen in the 13^th Century, from the time of ancient Greece and Rome. Then, there was a change in the nature of Asylum in the 18^th century. This concept got the international concern after the World War- I. And the different organization was formed to solve the issue. In this manner the concept of asylum emerged in the International Law.

[1] http://www.unhcr.org/pages/49c3646c137 (Last Visited: January, 10 2017).

[2] GURDIP SINGH, INTERNATIONAL LAW, 158  (2009).

[3] I.A. SHEARER, STARKE’S INTERNATIONAL LAW, 255 (11^th ed, 2010).

[4] IAN BROWNLIE, GUY S. GOODWIN- GILL, BROWNLIE’S DOCUMENTS ON HUMAN RIGHTS, OXFORD UNIVERSITY PRESS 42, (16^th ed, 2010).

[5] Maria Teresa Gil Bazo, Asylum as a General Principle of law,18 International Journal of Refugee Law, 22 (2015).

[6] U.N. GUPTA, THE HUMAN RIGHTS: CONVENTIONS AND INDIAN LAW 237( 2004)

[7] Stoyanova, Supra note 12, 4.

[8] Id 5.

[9] Id 5.

[10]http://oll.libertyfund.org/pages/1793-french-republic-constitution-of-1793 (Last Visited: Januaryary 10, 2017).

[11]U.N. Gupta, Supra 15,  239.

[12] Barbara Harrell-Bond, Refugees and the International System: The Evolution of Solutions, Refugees Studies Programme, 4.

[13] Id. 5.

[14] Jeffrey Dillman, International Refugee and Asylum Law, 34 Howard L.J. 51 1991.