Asylum and asylum law: theory and legal practice

Written by Giulia Lombardo

Political asylum is a very complex institution of International Law. Created as a form of hospitality and characterized by social and religious treaties, it has evolved with the concept of statehood to take the form of the right to asylum, which is declined in different forms. The right to asylum is connected to the issue of refugees and migration. Hence, the need to organize a common policy showed by the international and the European regional community.

Political asylum

The concept of asylum has very ancient origins. Indeed, its own etymology date back to the times of ancient Greece. The term is composed of a- “without” + sylē “right of seizure” which literally means a place where is not possible to cause offences. The places considered inviolable or immune were sacred places such as temples. The asylum also assumes religious connotations linked to the concept of welcome and hospitality provided by the Christian tradition.

With the consolidation of the state – in a legal sense of a population living on a territory subject to sovereignty – we begin to talk about territorial asylum as the territory of the various state entities could not be violated within its borders. From the asylum as a place where is possible to receive protection it gets to the so-called right of asylum, mentioned for the first time in article 120 of the French Constitutions according to which “French people would offer asylum to foreigners banned for the cause of freedom”.

The legal concept of asylum constitutes an institution of protection that, at its discretion, a state may grant to an individual who is subject to persecution on the grounds of “race, religion, nationality, membership of a particular social group or political opinions”. The right to asylum is configured as a right – and not an obligation – of the state to grant protection in the exercise of its sovereignty and not as an individual right. For this reason, each state regulates the matter of political asylum in its legislation and according to its Constitution.

Political asylum in International Law

In the international context, the right to asylum is mentioned in the Universal Declaration of Human Rights (UDHR), approved and proclaimed on 10th December 1948. Article 14 states “Everyone has the right to seek and to enjoy in other countries asylum from persecution. 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 Nation”.

About twenty years later, on 14th December 1967, the United Nations Declaration on
Territorial Asylum was adopted by Resolution 2312 (XXII) of the United Nations General Assembly. It consists of four articles. The first and last article refers the second paragraph of the abovementioned article extending the exception of “acts contrary to the purposes and principle of UN” to those who have committed “crime against peace, a war crime or a crime against humanity, as defined in the international instruments”. Article 2 mentions the principle of solidarity and common interest whereby, if the burden is onerous, states undertake to help a state that is unable to provide protection. Finally, Article 3 mentions the so-called principle of non-refoulement that “guarantees that no one should be re- turned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.

This principle is also the fundamental norm – and also an obligation of jus cogens – of the Convention relating to Status of Refugees, approved during a special conference of the United Nations, held in Geneva on 28th July 1951. The Refugee Convention does not regulate the granting of refugee status, but the recognition of that status. As regards the procedure, it is at discretion of the states which adopt national legislations for implementation, to regulate it. Therefore, the Convention regulates what results from granting the asylum to the applicants.

First of all, it offers, in the first article, the definition of the term refugee. The status of refugee is conferred to persons who own “the well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and 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”. Then, refugee is anyone who has obtained protection from a state other than that of citizenship in which he fears being persecuted or a stateless individual who cannot receive protection in the state in which he resides. An important specification concerns the expression well-founded fears of being persecuted. Convection is addressed to individuals who rightly fear being persecuted; not only the subjective element of fear can exist, but there must necessarily be the objective element that proves this situation. Nevertheless, to date, some individuals obtain recognition automatically; they come from countries such as Sudan, Somalia or Syria, where the seriousness and the gravity of the situation is known. 

Territorial asylum and diplomatic asylum

In legal practice are distinguished two different forms of asylum:
– Territorial asylum: granted by a State, to an individual, on its territory
– Diplomatic (or consular) asylum: granted by the State abroad in its diplomatic (or consular) offices Territorial asylum has been defined by the Institut de droit international as “the protection granted by a State on its territory or in places under its sovereignty, to an individual who has gone there to apply for it”. It is necessary to distinguish the right to asylum, which is exercised by the State and the right of asylum, enjoyed by the individual who sees his request granted.

However, there is no obligation to grant it and no right to obtain it. The national state of the asylum seeker is obliged to accept the decision of the refuge state complying with “international cooperation in penal matters and in the suppression of crime”. Refuge is offered to an individual whose safety is jeopardized by the condition in which he is in the state of citizenship (or of residence) for which the host state has the right not to extradite or surrender the individual.

The diplomatic asylum, on the other hand, has a legacy in the past of diplomatic relations when it could be considered territorial asylum. In fact, according to the principle of extraterritoriality, the diplomatic mission was considered a portion of the territory of the sending state and not of the host state, so the two types of asylums were essentially the same institution. To date, if the rules of Diplomatic Law are rigorously analyzed, the asylum offered in diplomatic offices constitutes a double violation as it is an interference in the internal affairs of the state and would also be improper use of the diplomatic headquarters. Nevertheless, in practice the two institutions have become established because both the territory and the diplomatic missions are inviolable. 

Historically we have a widespread practice of using the institution of diplomatic asylum among Latin American countries. A famous case concerns Haya de la Torre, a politician and head of the American revolutionary popular alliance who had attempted a coup d’état in 1948 in Peru and, because of the failure, and had sought refuge in the Colombian Embassy in Peru. Peru had not granted safe conduct to this subject and demanded he to be handed over to take him to trial.

The case was raised before the International Court of Justice, which denied in the first ruling that a local regional custom had formed in the matter of diplomatic asylum due to Peru’s opposition. This case assumes a crucial importance since it represented the incentive for some states of the American continent to create a legal instrument that regulated the matter, and which was adopted in Caracas in 1954. This type of asylum is not only recurrent but also refers to important cases of legal practice, including that of Julian Assange.

In 2006, Assange, an Australian computer science and political enthusiast, founded and became editor-in-chief of WikiLeaks, a portal in which were published private documents of public bodies. Since 2007 he shared private and state secret documents (including messages from diplomatic missions) of the United States, using a server located in Sweden, where he lived.

After Sweden issued an international arrest warrant, in June 2012 he obtained political refugee status from the Ecuadorian government at the embassy in London and the Ecuadorian citizenship five years later. “The statement of the Government of Ecuador claims that Mr. Assange made the decision to seek asylum and protection from Ecuador “because of the charges that, according to him, were formulated for alleged espionage and treason, with which this citizen exposes the fear of being consigned to the authorities of the United States of America – by the British, Swedish or Australian authorities – due to the declassification of compromising information for its government”.

In addition, to give greater foundation to the decision to grant asylum to Assange, the Ecuadorian Government also invoked Article 41 of its Constitution, which guarantees “the rights of asylum and refuge, in accordance with the provisions of the Law and Human Rights international instruments”. At the same time, while the international arrest warrant issued by Sweden was withdrawn, the United States investigated the Assange case and came to formulate the extradition request after the arrest of Assange by British authorities. In January 2021 the request was denied by the British court for reasons related to Assange’s health and the risk of suicide. It is important to underline that the Government of Ecuador referred to the Constitution.

The right of asylum and refuge is typically regulated and recognized by the Constitutions of the different states that regulate autonomously, in particular, the procedure for granting asylum. 

Italian Asylum Law

As regards Italy, the right to asylum is recognized in Article 10 of the Constitution, which incorporates and subscribes the Convention relating to the Status of Refugees and the relevant Protocol ratified in 1954 and in 1970. The article states that “the foreigner, who is prevented in his country from the effective exercise of the democratic freedoms guaranteed by the Italian Constitution, has the right to asylum in the territory of the Republic, according to the conditions established by law. The extradition of the foreigner for political crimes is not allowed”.

The two international instruments mentioned above, and Article 10 do not govern the procedure that is defined by the Decree of the President of the Republic of 12 January 2015, n. 21. The request for asylum may be raised if – as mentioned in the Geneva Convention of 1951 – there are risks to the safety of the subject deriving from persecution on the grounds of race, religion, nationality, social group or political opinion. The responsibility for such persecution must be attributed to the state, interpreted as its organs and institutions, to political parties or to organizations.

The decree states that the request can also be formulated orally through the help of a linguistic mediator, at the Border Police Office at the time of the entry into Italian territory, who will invite him to go to the Immigration Office of the Police Headquarters. In fact, it is the latter that handle the forwarding of the request to the Territorial Commission which is the only body with competence to assess the application for international protection. There is a second formula for international protection in addition to asylum, namely subsidiary protection. The latter is recognized by the Italian State to the foreigner who – although not recognizable as a refugee – runs a real risk of suffering serious damage in the state of nationality or residence. The cases are risk of death sentence or torture and risk arising from a conflict situation.

A different institution: the diplomatic protection

A fundamental distinction to be clarified is that between the aforementioned international protection – which can take the form of territorial or diplomatic asylum – and the institution of diplomatic protection. It constitutes the right of the national state of an individual to intervene against a foreign state who has violated international rules on the treatment of foreign nationals, in respect of one of his nationals. The state of nationality calls for recognition of the international responsibility of the foreign state and thusthe end of the illicit conduct and of the offence, obtaining, if necessary, compensation for the damage.

In this case, states shall submit the dispute to an arbitration mechanism or other means of dispute resolution. In an important judgment, the International Criminal Court (ICC) in Mavrommatis case stressed that the state has the right, not the obligation, to act under diplomatic protection, since the injury of one of its nationals constitutes a violation of its own rights. Moreover, the International Court of Justice (ICJ), in the case Barcelona Traction, stressed the importance of the national link with the state acting in diplomatic protection.

European Law

The European Union began to deal with the subject of asylum in 1990 with the adoption of the Schengen Convention, the seventh chapter of which lists the criteria for determining the status responsible for examining the application for asylum. This appears to be the state which issued a residency permit and, if has been issued more than one permit, the competent state becomes the state in which the residence lasted the longest. These provisions have been incorporated into the Dublin Convention, a regulation of the European Economic Community (ECC), which prevents the simultaneous and consecutive submission of several asylum applications in different States.

The Treaty of Amsterdam, entered into force on May 1999, includes asylum matters into the so-called Primo Pilastro. For this reason, it became a community competence and no longer a governmental one. The guidelines adopted in the aftermath of the Treaty of Amsterdam provided for two stages. In the first, the Member States would have to adapt their internal regimes by setting common standards and then, in the second, they would have created a common European system with a unique procedure and status valid throughout the territory of the EU. Relevant is the 2003 Directive, which commands minimum standards for the reception of asylum seekers in the Member States and provides that within fifteen days, asylum seekers have to be informed of their condition and of the legal assistance available.

In this first phase, the Dublin II Regulation was implemented. It establishes criteria for identifying which country is responsible for examining the application for asylum and defines that the responsible is the first state in which the asylum seeker arrives. This creates distortions in the system and has obviously raised some critical issues. Essentially, the mechanism lends countries with external borders the competence to examine all applications. Requests are concentrated in the countries close to the routes and therefore, they are not distributed equally.

Indeed, Directive 2005/85 EC showed that the inefficiency was caused by the non-compliance with the principle of solidarity (burden sharing). In this document have been indicated the lines of the future structure of the Common European Asylum System (CEAS). The European Commission stressed that the only way to resolve these problems was to find a unique binding and uniform procedure through a common system of asylum policy. The next step was achieved with the European Act on Immigration and Asylum, in autumn 2008. With its adoption, the European Council has established several commitments including organizing legal immigration, combating illegal immigration and ensuring repatriations.

The Treaty of Lisbon, signed on 13.12.2007 and entered into force on 1.12.2009, renamed the treaty that instituted the European Community as The Treaty on the Functioning of the European Union (TFEU). The legal basis for European action in the field of asylum is found in articles 67, 78, 80 of the Treaty on the Functioning of the European Union and in article 18 of the Charter of Fundamental Rights of the European Union.

Article 67 guarantees an area of freedom and security in accordance with fundamental rights, and it mentions the development of a common asylum policy, which is more precisely defined in article 78. The latter states that the European Union offers an appropriate status to any thirdcountry national who seeks international protection, relying on the principle of non-refoulement and solidarity – mentioned in article 80.

Article 18 of the Charter of Fundamental Rights of the European Union enshrines the right to asylum, guaranteed in compliance with the rules established by the Geneva Convention of 1951 and the Protocol of 1967.

In 2013 was approved the Dublin III Regulation which substantially did not change the principle at the base of the previous regulations. The application is the responsibility of a single state –which not only qualifies as responsible for the evaluation of the request but also as the state where the applicant must reside. 

The European Parliament proposed an innovative text in November 2017, based on two principles: the first is the redistribution of attendance – made by the state of entrance which has the competence to examine the application- but also the enhancement of significant links of the applicant, which could favor the integration itself.

The Dublin Regulation continued to be a central issue of European policy. The Common European Asylum System highlights the gaps and critical issues that have shown the need to introduce reforms, above all with the migration crisis. The pandemic crisis has also exacerbated these tensions and increased the strong migratory flows, highlighting even more the urgency of a change in the system.

In September 2020, the European Commission proposed a new Pact, which intends to align and improve the CEAS, aiming to:
– Reforming the Dublin system, ensuring greater efficiency, speed and respect for the
principle of solidarity
– Introducing extraordinary measures in the event of a crisis
– Establishing a European Union Agency with competence in the field of asylum
– Replace the directives – which set only the results – with a regulation that binds the
States to comply with the provision in all its parts


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