The Most Question About Asylum

There many questions about asylum and refugee

1. Definition of asylum

Asylum is protection that given to people for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of origin.

Asylum seekers is people who apply their status of asylum, and if received they would get protection as refugee

Definition of refugee

People who fear 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Definition of internally displaced person

The definition of internally displaced person is same as definition of refugee, but they are still in their country not outside of their country. Internally displaced person are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effect of armed conflict, situation of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internationally recognized state border (Guiding Principle of IDPs)

Migrant is people who are outside of their country, but the reason is not same as refugee, usually for reason of economic

2. When convention relating to status of refugee does not run to refugee?

1) He has voluntarily re-availed himself of the protection of the country of his nationality; or

2) Having lost his nationality, he has voluntarily re-acquired it, or

3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or

5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

6) Being a person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

3. Who could not be protected by convention relating to status of refugee?

1) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

2) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

3) He has been guilty of acts contrary to the purposes and principles of the United Nations.

4. What is refugee right?

1) Freedom to practice their religion and learn religious education to their children (art. 4)

2) Have the right to association, As regards non-political and non-profit-making associations and trade unions (art. 15)

3) Have the same access to court with national (art. 16)

4) Have favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage earning employment (art. 17)

5) have the same right to get public education with respect to elementary education (art. 22)

6) Have same treatment with respect to public relief and assistance as is accorded to their nationals (art. 23).

7) Have the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. It is according to international law of human right that listed in universal declaration of human right, international covenant on civil and political right etc.

8) The contracting state gives identity papers to any refugee in their territory who does not possess a valid travel document (art. 27).

9) Have travel document for the purpose travel outside their territory, unless if it will effect national security and public order (art. 28)

The Right to Asylum Is Mainly Affected by State Relation

Difference of political opinion as a reason of getting asylum (protection) to people who need protection in out of their country, in the same manner of Convention Relating To The Status of Refugee 1951, exactly in article 1 (2). Persecution based on Difference of political opinion is often as a reason to get asylum to other country, and international law instruments on human right guarantee it. Asylum is also given to people who act political crimes, on vice versa could not be given to general crimes

Explanation about what political opinion is, in international instrument does not clear enough. Crimes that include political crime decided by a country, which will give protection to asylum seeker. The problem might appear, if there is not same perception what kind of political crimes is, between government of asylum seeker and a country where they apply status of asylum. This problem tends to disturb state relation or even has tension.

Take an example, there is a person escapes from his country to another country to get protection, he said that he run away from his country because of fear of persecution based on difference of political opinion with authority. Finally, other country gives him asylum; the country supposes that he needs protection. Nevertheless, based on the country of origin, he is accused by doing general crimes, not a political crime.

Country of origin supposes that a country, which gives asylum, does not fill up requirement of law of human right, but asylum donor country supposes that the person needs protection. Which country is right? Diplomatic relation is very important in solving this problem such as by negotiation. Based on Convention Relating to Status of Refugee, explicitly in article 38, if there is no way out dealing with interpretation and implementation, the resolution, this dispute settled in International Court of Justice. However, the both countries must party of the convention on refugee. What if one or both countries are not state parties of this convention? It is better to respect asylum donor country in its policy dealing with asylum, and in a general principle state, that giving asylum includes a state's sovereignty.

Asylum Regulation

The Regulation of Asylum Based on International Law

There are many international instruments that rule on asylum, as follow:

A. Charter of United Nation

Charter of United Nation does not detail stated the right to asylum, but in preamble of Charter of United Nation admits fundamental rights, listed:

“to reaffirm faith in fundamental human rights, and the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

To promote social progress and better standarts of life in larger freedom”

B. Universal Declaration of Human Right

Art 13 (1) : “everyone has the right to freedom of movement and resident within the borders of each state”.

(1) : “everyone has the right to leave any country, including his own, and to return to his country”.

Art 14 (1) : “everyone has the right to seek and to enjoy in other countries asylum for prosecution”.

(2) : “the right may not be invoked in the case of prosecution genuinely a rising from non political crimes or from acts contrary to the purposes and principles of the united nations”.

C. International Covenant on Civil and Political Right

Article 12

(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

(2) Everyone shall be free to leave any country, including his own.

(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

(4) No one shall be arbitrarily deprived of the right to enter his own country.

D. United Nation Declaration on Territorial Asylum

Article 1

(1) Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism, shall be respected by all other States.

(2) The right to seek and to enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.

(3) It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum.

Article 2

(1) The situation of persons referred to in article 1, paragraph 1, is, without prejudice to the sovereignty of States and the purposes and principles of the United Nations, of concern to the international community.

(2) Where a State finds difficulty in granting or continuing to grant asylum, States individually or jointly or through the United Nations shall consider, in a spirit of international solidarity, appropriate measures to lighten the burden on that State.

Article 3

(1) No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.

(2) Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.

(3) Should a State decide in any case that exception to the principle stated in paragraph 1 of this article would be justified, it shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or otherwise, of going to another State.

Article 4

States granting asylum shall not permit persons who have received asylum to engage in activities contrary to the purposes and principles of the United Nations.

E. United Nation Declaration on Diplomatic Asylum

F. Convention and Protocol Relating to The Status of Refugees

This convention rule about refugee, not for asylum seeker, but in this convention also rules about international principle for asylum seeker, such as listed:

Article 32

Expulsion

(1) The Contracting States shall not expel a refugee lawfully in their territories save on grounds of national security or public order.

(2) The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

(3) The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures, as they may deem necessary.

Article 33

Prohibition of expulsion or return “Refoulement”

(1) 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.

(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country

G. The Cairo Declaration of Human Right in Islam

Article 12

“every man shall have the right, within the framework of shari’ah, to free movement and to select his place of residence whether inside or outside his country and if persecuted, is entitled to seek asylum in another country. The country of refugee shall ensure his protection until he reaches safety, unless asylum is motivated by an act which shari’ah regards as a crime”.

Based on asylum regulation listed above, we know that the right to asylum has strong legal standing and strongly guaranteed by international law of human right

The Practice of Giving Asylum Often Appear Tension

Giving asylum is kind of country right to people who need protection from persecution based on race, religion, nationality, political opinion in their country of origin. Based on international law, giving asylum tends to be as an international responsibility, which is based on convention of refugee if the country includes state party or has ratified it.

However, in fact, giving asylum often appear tension between the country where asylum seekers apply their status in and the country of origin. The governments of asylum seeker often suppose that the asylum donor country has made its home affair, moreover the reason of getting protection based on political distinction to the authority.

An example can describe how the effect of giving asylum in state relationship. In 2006, there were Papua people (Indonesia) went to Australia to get protection (asylum); the government of Australia supposed that they needed to be given protection. Papua asylum seeker went out from Indonesia to Australia caused by fear from persecution towards them, and the existing of gross violation of human right in their territory, it was their reason to apply asylum in Australia. Because the seekers filled the requirements that listed in its national regulation, finally the Government of Australia gave asylum to them. As a result, the Government of Indonesia protested to Australia why Australia gave asylum to them. The Government of Indonesia supposed that there was not violation of human right in Papua and no persecution in there. By the time, the relationship between Indonesian government and Australia was tension; it could be proved by recalling the Indonesian Ambassador to Australia, in diplomatic it is a serious problem.

We know that the right to asylum has been granted in international law instruments, but the practice is very determined by political relation of state parties, eventhough the right to give asylum is the country right whether would give or reject status of asylum seeker. By the case, we may conclude that eventhough asylum is a right and granted international law, but the implementation mainly influenced by state relationship.

Other practice, there are countries run their asylum policy by discrimination, by only giving or making asylum status easily to people who are from certain country or region, and make it difficult for others country or region. Therefore, giving protection does not consider international law, however by the situation that happen to state party.

We cannot deny, state relation plays important dealing with asylum policy, but the right of asylum must be granted as possible as we can. Despite there is no real sanction towards state that run unfair policy, United Nation should pressure the importance of giving asylum to people who really need it.

Dealing with giving asylum based on political, asylum donor country should check whether the applicant have political distinction or do ordinary crimes, and or check first, whether their authority persecute them. By checking first, we hope that giving asylum will not cause bad impact to the asylum donor country and their country of origin.

For country, which give asylum should check continouesely their daily activities and prohibit asylee (person who get asylum) not to violate or suffer their original national interests, such as by doing black campaign their country of origin to international. For the country of origin, should respect to country, which give asylum towards their citizen as a country right.