Optimal Asylum

By Ray, Shalini Bhargava | Vanderbilt Journal of Transnational Law, November 2013 | Go to article overview

Optimal Asylum


Ray, Shalini Bhargava, Vanderbilt Journal of Transnational Law


A. A State's Right to Grant Asylum

International refugee law does not recognize an individual's right to be granted asylum in a foreign country. 190 The Universal Declaration of Human Rights (UDHR) recognizes only the "right to seek and to enjoy, in other countries, asylum from persecution." (191) At a minimum, this principle secures the individual's right of asylum "vis-a-vis the pursuing [s]tate"--the right to flee the pursuing state and to seek and enjoy asylum elsewhere. (192) But this right imposes no obligation on states to grant asylum--or even access to the territory--to a refugee. (183) Atle Grahl-Madsen has explained that the United Nations Commission on Human Rights (UNCHR), in drafting the UDHR, initially considered recognizing the "right to seek and be granted, in other countries, asylum." (194) The British delegation, however, resisted this phrasing, believing that it would effectively entitle any asylum seeker to admission into any other country of his or her choosing. (195) Such a right would tread on states' immigration laws. (196) As an alternative, the British delegation proposed replacing the phrase '%e granted" with "to enjoy." (197) Members of the UNCHR understood plainly that an individual's right to enjoy asylum meant little without a corresponding right to be granted asylum. (198) However, the British delegation cared not about the individual's right to enjoy asylum; it was concerned with the rights of asylum states to "enjoy" granting asylum. (199) The proposed revision would protect '"the right of every State to offer refuge and to resist all demands for extradition." (200) By characterizing asylum as a sovereign right of an asylum state rather than a human right of the individual, the British delegation advanced the view of asylum as a discretionary institution compatible with states' complete territorial sovereignty. (201)

The territorial sovereignty of the pursuing state generally prevents an asylum state from providing refuge to an asylum seeker who has not yet fled. In The Asylum Case, the International Court of Justice determined that an asylum state's act of protecting an asylum seeker from the pursuing state's authorities within the pursuing state constituted "derogation from the territorial sovereignty" of the pursuing state. (202) Accordingly, a state generally cannot grant asylum in an embassy or consulate located in the pursuing state without that state's consent. (203) This does not preclude individuals from seeking the physical safety of an embassy. (204) Rather, in Grahl-Madsen's words, such protection constitutes merely a "tolerated stay," not asylum. (205) An asylum seeker thus resides for a time in a jurisdiction from which he or she wishes to "separate" himself or herself. (206) For this reason, "internal asylum" may both produce undesirable diplomatic consequences for the pursuing and asylum states and present practical challenges, such as transporting the asylum seeker out of the pursuing state without obstruction. (207) Accordingly, the asylum seeker's flight plays a central role in international refugee law: absent flight from the pursuing state, the asylum state may have only a limited ability to execute a grant of asylum. (208)

WikiLeaks founder Julian Assange's ongoing efforts to flee the United Kingdom and enjoy asylum in Ecuador demonstrate this difficulty. (209) Sweden seeks to exercise jurisdiction over Assange to try him for alleged sexual offenses arising out of a trip he took there in 2010. (210) Assange fled to the United Kingdom, which then determined that it was obligated to extradite him to Sweden. (211) He then sought refuge in the Ecuadorian embassy and applied for asylum, hiding for two months while awaiting a decision. (212) Ecuador ultimately granted him "diplomatic asylum" on the ground that he might ultimately be extradited to the United States and subjected to the death penalty. (213) Nonetheless, the United Kingdom maintained that it was bound to extradite Assange and that it would arrest him if he attempted to flee the Ecuadorian embassy to travel to Ecuador. …

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