Asylum Rights Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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Asylum is protection offered by a government to persons who face persecution in their home country for reasons including race, religion, nationality, membership in a particular social group, or political opinion. It is possible to separate discussion of asylum rights from the question of international refugee protection. Such a distinction is, however, unhelpful, and modern analysis of asylum rights should be framed in the context of wider global refugee debates. The treatment of refugees and asylum-seekers has become a defining feature of the modern age. The protection and promotion of human rights have particular significance for these groups. While the concept of asylum has ancient origins, the right to seek asylum gained international recognition in the Universal Declaration of Human Rights 1948. Article 14(1) provides that “everyone has the right to seek and to enjoy in other countries asylum from persecution. ”The concept gained further acknowledgement in the American Declaration of the Rights and Duties of Man 1948, the American Convention on Human Rights 1969, the Organisation for African Unity Convention on the Specific Aspects of Refugee Problems in Africa 1969, the African Charter on Human and Peoples’ Rights 1981, the Arab Charter on Human Rights 1984, and the European Union Charter of Fundamental Rights 2000. The right to seek asylum is to be found in a range of international instruments; the challenge is establishing whether refuge is in fact being provided. Possessing a right to seek asylum, or even a right to leave your country of origin, is important, but states remain firmly wedded to notion that granting entry is a foundational sovereign “right” of the state.

The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees are the legal instruments that have gained widespread acceptance in the international community. Provision is made for the definition of refugee, as well as protections and guarantees that attach to that status. The definition contains several elements. First, the person must be outside the country of origin and be unable or unwilling to avail of state protection. Those displaced within their own countries are therefore not refugees for convention purposes. Internally displaced persons can be particularly vulnerable (and are more numerous globally), yet in international legal terms they are not refugees. Second, the person must have a “well-founded fear of being persecuted.” This test combines the objective (well-founded) and the subjective (fear) with the prospective “being persecuted.” Many refugee determination systems are therefore concerned with establishing what might happen to the person upon return to the country of origin. This is not enough to establish a claim to refugee status. The person must also demonstrate a fear of being persecuted for a reason stated in the convention: race, religion, nationality, membership of a particular social group, or political opinion. Debate continues on these grounds, as well as how inclusively they should be interpreted. The 1951 Convention provides protections ranging from legal status and employment to housing and social security. The guarantee of particular significance is that of nonrefoulement, the prohibition of expulsion or return (Article 33(1)).The principal objective of refugees is not to be returned to face persecution, and this legal obligation is intended to reflect that fact. The obligation contained in the convention is not absolute and contains an exception that relates to security and those who have committed serious crimes.

The 1951 Convention remains the cornerstone of international refugee protection. In terms of institutional protection, the United Nations High Commissioner for Refugees (UNHCR) operates as the international “guardian” of refugee protection. UNHCR figures reveal 10.5 million refugees of concern to that organization, with more than 50 percent in Asia and 20 percent in Africa. The number of internally displaced persons is approximately double that, standing at twenty-six million in 2008 (UNHCR 2010).

International human rights law, with its focus on the person, is of significance. Although the guarantees do not often refer expressly to this group, by implication they are applicable as human rights. For example, the International Covenant on Civil and Political Rights 1966 and the International Covenant on Economic, Social and Cultural Rights 1966 contain important guarantees of relevance to any discussion of asylum rights. At the regional level, in Europe, the European Convention on Human Rights 1950 is notable. For example, Article 3 has evolved into an important guarantee against return of those who can show substantial grounds to believe there is a real risk they will be tortured or subjected to inhuman or degrading treatment or punishment. National constitutional protections also will be of relevance in determining the rights asylum-seekers might avail of.

The rights of refugees and asylum-seekers are now well-established in international law. The reality of refugee protection and asylum rights is often markedly different. The problem of effective implementation and enforcement remains, and negotiating the politics of asylum and human displacement is one of the most pressing challenges of our time.

Bibliography:

Harvey, Colin. “Dissident Voices: Refugees, Human Rights and Asylum in Europe.” Social and Legal Studies 9, no. 3 (2000): 367–396.
Seeking Asylum in the UK: Problems and Prospects. London: Butterworths, 2000.
“Refugees, Asylum Seekers the Rule of Law and Human Rights.” In The Unity of Public Law, edited by David Dyzenhaus, 201–224. Oxford, U.K.: Hart. 2004.
Hathaway, James. The Rights of Refugees under International Law. Cambridge: Cambridge University Press, 2005.
Hathaway, James C., and Colin J. Harvey. “Framing Refugee Law in the New World Disorder.” Cornell International Law Journal 34, no. 2 (2001): 257–320.
UNHCR: The UN Refugee Agency, 2010, www.unhcr.org.