ASYLUM, RIGHT OF

The Universal Declaration of Human Rights proclaims 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 prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. (Universal Declaration of Human Rights, Article 14)

This does not establish a right to asylum, only a right to seek asylum, and if successful in doing so, to enjoy that asylum. There is no corresponding obligation on the part of states to grant asylum. As the right to asylum has never been codified, its granting is at the discretion of states. Thus, the right to decide whether someone is deserving of asylum lies with the state in which the asylum application is lodged. The 1951 Convention Relating to the Status of Refugees (Geneva Convention) and 1967 Protocol to that Convention (New York Protocol) set some limits on the sovereign right to determine who is a refugee. Two articles are of particular importance: the definition of refugee in Article 1 of the Convention, and the protection of non-refoulement (that is, protection against forcible return) under article 33. These articles state respectively that:

The term "refugee" shall apply to any person who: … 2)….owing to a well-foundedfear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…(Geneva Convention, Article 1)

And,

No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (Geneva Convention, Article 33)

As of February 1, 2002, 140 states were signatories to the Convention; 138 had signed the Protocol; and 135 had signed both. All European Union states are signatories to both documents. Many states in Asia have signed neither instrument. In Africa, the majority of states have not only signed the Convention and Protocol, but also a regional (Organization of African Unity) convention, extending the status of refugee to those fleeing conflicts in the region.

The states that have committed themselves to the laws and principles set out in the Convention and Protocol have divergent means of applying the tools of refugee protection. For example, some states grant refugee status only when persecution at the hands of a state or governmental actor is feared, and not in the case of persecution at the hands of a non-state militia or other such group. For many states, conferring recognition as a refugee depends on persecution that is objectively demonstrated as targeting the individual in question. Those fleeing war, which targets whole populations, fall outside the definition as thus interpreted.

In a number of developed states, a person who is deemed not to qualify for refugee status (according to the definition cited above) but who cannot be returned to his or her country of origin (pursuant to the non-refoulement stipulation) may be granted a form of supplementary or complementary protection. This is the case in most of the European Union (EU) member states and in Canada, but not in the United States. This type of humanitarian status frequently has fewer rights attendant to it: There may be greater restrictions on the possibilities for family reunification, or a time limit may be applied to the length of legal residence before permit renewal. The issue of the length of time for which asylum or protection may be granted has been a contentious one in many states. Although the cessation clauses (1C) of the 1951 Convention mean that refugee status may be withdrawn if circumstances change in the country of origin, Convention status has been viewed by most states as something of permanence, at least in terms of the residence rights they confer with it.

In other situations states have sought to create explicitly temporary forms of protection. The most striking instance applied to people fleeing former Yugoslavia, including Bosnia and Kosovo, to other European states in the 1990s, who were granted temporary protection rather than refugee status. These people were deemed to be fleeing generalized violence rather than individualized persecution. But the move toward temporary forms of protective status was also driven by the administrative difficulty of dealing with a greatly increased number of asylum claims in a short period. Increasingly, time limits are being attached to the status granted to refugees. The Netherlands, for example, enacted a new Aliens Law in 2000, granting only three years residence (in yearly increments) in the first instance to persons deemed to be in need of protection.

Since the mid-1980s European states have adopted policies and practices that limit the rights of those not returned to their countries of origin, whether or not they are granted a Convention refugee status. This is partly a reaction to a real or perceived increase in xenophobia, prompted especially by concerns about asylum-seekers' access to various forms of welfare services, in money or in kind, that is available to the resident population. In part it is also because the key foreign policy support for the asylum system has changed dramatically since the end of the Cold War. The Convention definition of a refugee was written with World War II fresh in the collective memory, and the Cold War as a developing phenomenon. When the Cold War ended, political authorities in the West saw the definition as no longer fully relevant. Moreover, they started to seek partners in the newly democratic states who would take on their share of the refugee protection burden. One means of burden-shifting came with the development of the concept of a "safe third country": If asylum-seekers passed through a country in which they could have sought and enjoyed protection before reaching their desired destination, some states consider that they should be the responsibility of that country and should be returned to it. Burden-shifting trends are apparent within the EU, and between EU member states and their eastern neighbors. They are also influencing asylum policymaking in Southern Africa, Australia, and elsewhere.

As countries have tightened their asylum systems, they have seen a rise in migrant smuggling. In turning to unconventional methods of transportation and assistance in acquiring documentation, refugees become doubly vulnerable: first, as victims of persecution and second, as frequent victims of exploitation.

A further trend, emphasized by reactions to the terrorist attacks of September 11, 2001, is the linking of security and asylum issues, not only at the causal end of refugee movements, but also at the destination of the protection seeker. As states seek greater control over entry to their territories, they increasingly turn to resettlement programs of the kind seen in the U.S., Canada, Australia, and New Zealand. In these programs persons to be resettled are selected in their country of origin or a neighboring state–thereby, it is hoped, taking the initiative away from smugglers as well as permitting earlier screening for criminal background or terrorism threat. This potentially also narrows the opportunities for asylum seeking.

See also: Ethnic Cleansing; Genocide; Immigration Policies; Refugees, Demography of.

bibliography

Convention Relating to the Status of Refugees. 1951. 189 United Nations Treaty Series (UNTS) 137

Goodwin-Gill, Guy S. 1996. The Refugee in International Law. Oxford: Clarendon Press.

Gowlland-Debbas, Vera, ed. 1996. The Problem of Refugees in the Light of Contemporary International Law Issues. The Hague, The Netherlands: Martinus Nijhoff.

Hathaway, James C. 1991. The Law of Refugee Status. Toronto: Butterworths.

Nicholson, Frances, and Patrick Twomey. 1999. Refugees Rights and Realities: Evolving International Concepts and Regimes. Cambridge, Eng.: Cambridge University Press.

OAU Convention Governing Specific Aspects of Refugee Problems in Africa. 1969. 1001 UNTS 45.

United Kingdom Home Office. 2002. Secure Borders, Safe Haven: Integration with Diversity in Modern Britain. London: Crown Publishers.

Universal Declaration of Human Rights 1948. American Journal of International Law 1949 (Supplement) 43(3).

Vreemdelingen Wet 2000 [Asylum Act 2000]. 2000. The Hague: Staatsblad. 495 December 7, 2000.

internet resources.

Protocol to the Convention Relating to the Status of Refugees. 1967. 606 UNTS 267. Available at the United Nations High Commissioner for Refugees website. <http://www.unhcr.ch>.

van Selm, Joanne. 2001. "Access to Procedures: Safe Third Countries, Safe Countries of Origin and Time Limits." United Nations High Commissioner for Refugees website. <http://www.unhcr.ch/cgi-bin/texis/vtx/home/>.

Joannevan Selm