Asylum: territorial and extra-territorial, and the protection of refugees

1. Meaning

Asylum means shelter and active protection given by a State to a political refugee from another State. It has two elements: shelter, which is more than temporary refuge, and a degree of active protection on the part of the authorities in control of the territory (the Institute of International Law, 1950). Asylum is a right of the State to grant, not a right of the individual to receive. Article 14(1) of the Universal Declaration of Human Rights says everyone has the right to seek and to enjoy in other countries asylum from persecution; it does not say a right to be granted asylum. Article 14(2): the right may not be invoked for prosecutions genuinely arising from non-political crimes or acts contrary to the purposes and principles of the UN.

2. Territorial asylum

Asylum granted by a State within its own territory. It follows from territorial sovereignty: a State has exclusive control over persons in its territory and may admit whom it pleases. So the grant of territorial asylum is lawful and is not an unfriendly act towards the State the person has fled. Examples: India's grant of asylum to the Dalai Lama and Tibetan refugees in 1959.

• Relation to extradition. Territorial asylum is the reverse side of extradition. Where there is an extradition treaty, the State must surrender a person for an extradition crime; but political offenders are excepted, and that is where asylum operates.
• Declaration on Territorial Asylum (General Assembly Resolution 2312 (XXII), 1967): asylum granted in the exercise of sovereignty must be respected by other States; it is for the State granting asylum to evaluate the grounds; no person entitled to seek asylum shall be subjected to rejection at the frontier, expulsion or compulsory return to any State where he may be subjected to persecution; and the State should not allow asylees to engage in activities contrary to the purposes and principles of the UN.
• Limits. Asylum is not available to persons who have committed crimes against peace, war crimes or crimes against humanity, or serious non-political crimes (Refugee Convention, Article 1F).

3. Extra-territorial asylum

Asylum granted by a State outside its territory, in places which are exempt from local jurisdiction. Since this involves withdrawing the person from the jurisdiction of the territorial State, it is a derogation from that State's sovereignty, and is permitted only where there is a legal basis: a treaty, or a custom, as in Latin America.

(a) Diplomatic asylum in legations. The premises of a mission are inviolable (Article 22 of the Vienna Convention on Diplomatic Relations, 1961), so local authorities cannot enter to arrest a refugee. But the Convention confers no right to grant asylum; Article 41(3) requires that the premises not be used in any manner incompatible with the functions of the mission. Diplomatic asylum is generally recognised only in Latin America, under the Havana Convention on Asylum, 1928, the Montevideo Convention on Political Asylum, 1933, and the Caracas Convention on Diplomatic Asylum, 1954. Examples outside that region: Cardinal Mindszenty in the US legation in Budapest (1956–1971); Julian Assange in the Ecuadorian embassy in London (2012–2019).

The Asylum case (Colombia v. Peru), ICJ, 1950. After a failed military rebellion in Peru in 1948, Victor Raúl Haya de la Torre, leader of the APRA party, was charged with military rebellion and in January 1949 took refuge in the Colombian embassy in Lima. Colombia granted asylum, qualified him as a political offender, and asked for a safe-conduct to take him out of Peru. Peru refused. The Court held:

• Colombia was not entitled to qualify the offence unilaterally and definitively in a way binding on Peru. The Havana Convention did not provide for it, and Colombia had not proved a regional custom: the practice was too uncertain, contradictory and influenced by political expediency to show a constant and uniform usage accepted as law.
• Peru was not bound to give a safe-conduct.
• The grant of asylum was not in conformity with the Havana Convention, because asylum is allowed there only in cases of urgency, and three months had passed since the rebellion.
• Diplomatic asylum involves a derogation from the sovereignty of the territorial State; it withdraws the offender from its jurisdiction and constitutes an intervention in matters exclusively within its competence. Such a derogation cannot be recognised unless its legal basis is established in each case.

Haya de la Torre case (Colombia v. Peru), ICJ, 1951. Colombia was not obliged to surrender Haya de la Torre to Peru, since the Havana Convention does not require surrender of a political offender, but the asylum ought to have ceased. The Court declined to say how; the parties were left to settle it by negotiation, and in 1954 he was allowed to leave Peru.

(b) Asylum in consulates: consular premises enjoy more limited inviolability (VCCR 1963, Article 31), and asylum there has even less support.

(c) Asylum on warships. Warships in foreign ports are exempt from local jurisdiction, and practice allows asylum to political refugees on humanitarian grounds, though not to ordinary criminals or deserters from the local forces.

(d) Asylum on merchant ships: none, since merchant ships in port are subject to local jurisdiction.

(e) Asylum in premises of international organisations, which are inviolable under headquarters agreements; limited and temporary in practice.

4. Refugees and non-refoulement

The Convention relating to the Status of Refugees, 1951, and its Protocol of 1967 define a refugee as a person who, owing to a well-founded 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, unwilling to avail himself of its protection (Article 1A(2)). The central obligation is non-refoulement (Article 33(1)): no State shall expel or return a refugee in any manner to the frontiers of territories where his life or freedom would be threatened on those grounds. Article 33(2) excepts a refugee who is a danger to the security of the country or has been convicted of a particularly serious crime. Non-refoulement is widely regarded as customary law, and absolute where there is a risk of torture (Torture Convention 1984, Article 3).

5. India's position

India is not a party to the 1951 Convention or the 1967 Protocol and has no refugee statute. Foreigners are governed by the Immigration and Foreigners Act, 2025, which replaced the Foreigners Act, 1946 and related laws. Protection comes from the Constitution.

• National Human Rights Commission v. State of Arunachal Pradesh, 1996 INSC 38, (1996) 1 SCC 742. Chakma refugees settled in Arunachal Pradesh were threatened with forcible eviction by student groups. The Court held that Article 21 protects every person, citizen or not, and directed the State to protect their life and personal liberty and not to evict them except in accordance with law.
• Mohammad Salimullah v. Union of India, 2021 INSC 239 (8 April 2021). Rohingya refugees detained in Jammu sought release and protection from deportation to Myanmar, relying on non-refoulement. The Court, at an interim stage, declined to stop deportation in accordance with the procedure prescribed, observing that India is not a signatory to the Refugee Convention and that the right not to be deported is ancillary to the right to reside, which is available only to citizens under Article 19(1)(e), while Article 21 protects all persons.

How this is examined

The essay on types of asylum: definition with UDHR Article 14, territorial asylum with the 1967 Declaration and its link to extradition, then extra-territorial asylum under (a) to (e) with the Asylum and Haya de la Torre cases fully stated, and a closing paragraph on non-refoulement and India. For a six-mark note, compress to: definition, two types, the Asylum case, and Article 33 of the Refugee Convention.