Star Law Analysis
How
does an asylum seeker differ from a refugee?
Barrister
Harun ur Rashid
The
term "asylum seeker" is to be differentiated
from that of "a refugee". Refugee is a person
who comes within the definition of a refugee under the
1951 UN Convention Relating to the Status of Refugees.
It is the legal "Bible" to which a reference
is made as to whether or not, a person falls under the
category of a refugee.
The
core elements of a refugee under the UN Convention is:
(a) the person must be outside the country of his/her
nationality, (b) the person is unable to return to his/her
home land because of the lack of protection in the country,
(c) such inability or unwillingness to return is caused
by a well-founded fear of being persecuted and (d) persecution
feared is based on race, religion, nationality, membership
of a particular social group or political opinion.
In
case of doubt whether a person is a refugee or not, countries
refer the matter to the UN High Commissioner for Refugees
(UNHCR) for a decision and largely the countries of refuge
abide by the decision.
photo:liberationkorea.com |
Right
of Asylum
The term "asylum" has been referred to in many
human rights instruments. The 1948 Universal Declaration
of Human Rights in its Article 14 states: " everyone
has the right to seek and enjoy in other countries asylum".
Article 13 states that "everyone has the right to
leave any country , including his own and to return to
his country".
An
asylum seeker may not be considered a refugee because
the person does not fall within the definition of the
Convention. Although the person concerned may not strictly
fall under the term "refugee", the asylum seeker
does not wish to go back to his/her country of origin
because of harassment or some other concern for security
of his/her life. In such circumstance, the person concerned
may seek asylum in a foreign country and will, be designated
as an asylum seeker.
Definition
of Asylum
The definition of asylum was adopted by the Institute
of International Law in 1950 and it reads as follows "
Asylum is the protection which a state grants on its territory
or in some other place under the control of its organs
to a person who comes to seek it."
The
International Court of Justice in the Asylum case in 1950
observed that in case of asylum the receiving state "
withdraws the offender from the jurisdiction of the territorial
state and it constitutes an intervention in matters which
are exclusively within the competence of the receiving
state."
The
concept of asylum has further been elaborated by the 1967
Declaration of Territorial Asylum. Under the Declaration,
the granting of asylum is considered a humanitarian act
and it cannot be regarded as unfriendly to any other state.
In
Latin America, the concept of asylum has been reaffirmed
in the 1954 Convention on Territorial Asylum. All the
Latin American countries agree that it is the sovereign
right to grant a person asylum as the receiving state
deems it fit and proper. The duty of other states is to
respect the right of asylum and not to expel the person
who seeks asylum.
Examples
In recent times, the President of Ecuador resigned and
took asylum in the Embassy of Brazil of the Ecuador's
capital city (Quito) because of popular protest against
him. Brazil granted asylum to the former President of
Ecuador. Ordinarily such case falls under "diplomatic
asylum" because the person seeks protection of the
Embassy of a foreign country.
photo : tribuneindia.com |
The
noted case of diplomatic asylum was between Peru and Colombia.
Haya de la Torre, after the unsuccessful revolution in
Peru, took protection of the Colombian Embassy in Peru.
Peru did not agree to grant safe passage of Torre to Colombia.
Colombia took the matter to the International Court of
Justice and the Court in 1951 ruled that under the 1928
Havana Convention of Asylum, Colombia was not obligated
to hand over Torre to Peru. Later they settle the dispute
and allowed Torre to leave Peru.
In
South Asia former Pakistan's Prime Minister Benazir Bhutto
sought asylum in UAE and she is living there since 1999
because she fears that she will be harassed by the Musharraf
government. Taslima Nasreen from Bangladesh took asylum
in Sweden when she thought that her life was in danger..
Dictator
of Ethiopia Col. Mengistu Haile Mariam had to flee because
of popular revolt in 1991 and took asylum in Zimbabwe
where he now lives. Dictator Idi Amin of Uganda took asylum
in Saudi Arabia and died there a few years ago.
By
1998 the number of asylum seekers in Europe stood to 332,800.
Approximately 40% of them are applicants from Balkan countries
due to ethnic wars in Bosnia, Kosovo and Croatia.
Conclusion
The term "asylum seeker" is much wider than
that of a refugee. An asylum seeker could be a refugee
if he/she satisfied the criteria laid down by the 1951
Refugee Convention. If not, the person could be categorized
as asylum seeker. Asylum consists of (a) to admit a person,
to allow that person to remain in a foreign country, (b)
not to expel or extradite or prosecute that person and
(c) to receive protection of the receiving country as
long as the person wishes. Asylum is a fundamental human
right and the right protects human dignity.
The
author is former Bangladesh Ambassador to the UN, Geneva.
