Monday, February 15, 2010

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


(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