Optimal asylum.

• Author: Ray, Shalini Bhargava
• Position: Refugee protection regime - Continuation of III. History of the Refugee Protection Framework through V. Conclusion, with footnotes, p. 1239-1265

1. A State's Right to Grant Asylum

   International refugee law does not recognize an individual's right to be granted asylum in a foreign country. 190 The Universal Declaration of Human Rights (UDHR) recognizes only the "right to seek and to enjoy, in other countries, asylum from persecution." (191) At a minimum, this principle secures the individual's right of asylum "vis-a-vis the pursuing [s]tate"--the right to flee the pursuing state and to seek and enjoy asylum elsewhere. (192) But this right imposes no obligation on states to grant asylum--or even access to the territory--to a refugee. (183) Atle Grahl-Madsen has explained that the United Nations Commission on Human Rights (UNCHR), in drafting the UDHR, initially considered recognizing the "right to seek and be granted, in other countries, asylum." (194) The British delegation, however, resisted this phrasing, believing that it would effectively entitle any asylum seeker to admission into any other country of his or her choosing. (195) Such a right would tread on states' immigration laws. (196) As an alternative, the British delegation proposed replacing the phrase '%e granted" with "to enjoy." (197) Members of the UNCHR understood plainly that an individual's right to enjoy asylum meant little without a corresponding right to be granted asylum. (198) However, the British delegation cared not about the individual's right to enjoy asylum; it was concerned with the rights of asylum states to "enjoy" granting asylum. (199) The proposed revision would protect '"the right of every State to offer refuge and to resist all demands for extradition." (200) By characterizing asylum as a sovereign right of an asylum state rather than a human right of the individual, the British delegation advanced the view of asylum as a discretionary institution compatible with states' complete territorial sovereignty. (201)

   The territorial sovereignty of the pursuing state generally prevents an asylum state from providing refuge to an asylum seeker who has not yet fled. In The Asylum Case, the International Court of Justice determined that an asylum state's act of protecting an asylum seeker from the pursuing state's authorities within the pursuing state constituted "derogation from the territorial sovereignty" of the pursuing state. (202) Accordingly, a state generally cannot grant asylum in an embassy or consulate located in the pursuing state without that state's consent. (203) This does not preclude individuals from seeking the physical safety of an embassy. (204) Rather, in Grahl-Madsen's words, such protection constitutes merely a "tolerated stay," not asylum. (205) An asylum seeker thus resides for a time in a jurisdiction from which he or she wishes to "separate" himself or herself. (206) For this reason, "internal asylum" may both produce undesirable diplomatic consequences for the pursuing and asylum states and present practical challenges, such as transporting the asylum seeker out of the pursuing state without obstruction. (207) Accordingly, the asylum seeker's flight plays a central role in international refugee law: absent flight from the pursuing state, the asylum state may have only a limited ability to execute a grant of asylum. (208)

   WikiLeaks founder Julian Assange's ongoing efforts to flee the United Kingdom and enjoy asylum in Ecuador demonstrate this difficulty. (209) Sweden seeks to exercise jurisdiction over Assange to try him for alleged sexual offenses arising out of a trip he took there in 2010. (210) Assange fled to the United Kingdom, which then determined that it was obligated to extradite him to Sweden. (211) He then sought refuge in the Ecuadorian embassy and applied for asylum, hiding for two months while awaiting a decision. (212) Ecuador ultimately granted him "diplomatic asylum" on the ground that he might ultimately be extradited to the United States and subjected to the death penalty. (213) Nonetheless, the United Kingdom maintained that it was bound to extradite Assange and that it would arrest him if he attempted to flee the Ecuadorian embassy to travel to Ecuador. 314 Accordingly, although Assange has obtained a grant of asylum in a third country, he has no straightforward way to travel there without the risk of apprehension and extradition. Asylum has no force where the individual remains within the territory of the pursuing state and the latter prevents the individual's flight to the safe haven. (215) As a result, even an asylum state's right to enjoy granting asylum is circumscribed by the interests of the pursuing state.

2. An Individual's Right to Seek Asylum

   Against this backdrop of territorial sovereignty, however, are the individual's right to seek asylum and international human rights related to free movement. (216) Some have argued that Article 14 of the UDHR implicitly guarantees individuals a right to access an asylum procedure by guaranteeing the right to seek asylum. (217) Moreover, the right to seek asylum established in the UDHR continues to evolve in relation to other international instruments, reflecting developments in human rights law. (218) These instruments reinforce the right of individuals to flee a country of persecution (219) and encourage asylum states to admit refugees for this purpose. (220)

   The right to emigrate is chief among these rights. (221) Article 13.2 of the UDHR establishes that "[e]veryone has the right to leave any country, including his own, and to return to his country." (222) Article 12 of the International Covenant on Civil and Political Rights (ICCPR) codifies this guarantee: "Everyone shall be free to leave any country, including his own." (223) States may, however, restrict this right to "protect national security, public order, public health or morals or the rights and freedoms of others." (224) Moreover, the right to emigrate imposes obligations on the country of origin not to thwart departure or withhold travel documents, but it does not obligate asylum states to admit asylum seekers. (225)

   The Declaration on Territorial Asylum further endorses the "moral" right of a refugee to gain admission to a country of refuge, (226) but it is neither a binding treaty obligation nor customary international law. (227) Accordingly, absent greater engagement with human rights law, traditional concepts of territorial sovereignty continue to constrict the right to seek asylum. (228)

3. Refugee Convention

   The central treaty on the rights of refugees, the Refugee Convention, obligates states not to refouler refugees to countries where they face persecution. (229) This subpart describes the nonrefoulement obligation and observes that international refugee law is not designed to attract asylum claims from abroad based on the degree of harm suffered by the claimant. Instead, international refugee law is designed to address the status of people who have already fled into another country. (230) Accordingly, refugee law does not obligate asylum states to issue visas to facilitate the travel of asylum seekers who wish to flee their countries of origin. (231) Its failure to do so, however, means that the community of refugees existing in any asylum state represents not those refugees who necessarily face the most imminent or severe harm but those who succeeded in crossing national boundaries and navigating migration controls. (232)

   This subpart begins by examining the principle of nonrefoulement generally; next, it explores its purpose in a regime that expects most asylum seekers to enter asylum states illegally; it then describes how nonrefoulement applies to visa rules; and, finally, it discusses the role of nonrefoulement in U.S. law.

   1. Nonrefoulement Generally

      Refugee law has evolved since the adoption of the UDHR into a "hybrid" (233) of discretionary asylum and obligatory nonreturn to a persecuting country. (234) The Refugee Convention is widely regarded as the "centerpiece" (235) of international refugee law and an important humanitarian achievement. (236) The Refugee Convention defines who is a "refugee" and establishes states' obligations toward refugees. (237) However, as scholars have noted, the treaty is far less generous than it is typically understood to be. (238) Although it extends numerous rights to refugees upon admission and recognition, such as the right to industrial property, (239) it does not create a right to asylum and does not require states to provide asylum seekers with access to the asylum procedure unless they are inside the territory of the asylum state or at the frontier. (240) In fact, some scholars characterize the Refugee Convention as an agreement premised on the right of states to control migration in the usual ways. (241)

      The central feature of the Refugee Convention is its definition of refugee:

      [A]ny person who ... (2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in 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.... (242) This definition has been widely praised as "nondiscriminatory," (243) and it serves as the foundation for modern refugee law. (244)

      Although not a party to the Refugee Convention, the United States ratified the 1967 Protocol, and thereby committed not to return refugees to any country where their life or freedom would be threatened on account of a protected ground. (245) The Senate viewed the 1967 Protocol as a codification of existing humanitarian commitments. (246) The 1967 Protocol revised the definition of refugee by eliminating the requirement that a refugee be displaced due to events occurring before 1951. (247) It also removed the restriction that these events have occurred in Europe. (248) The 1967 Protocol otherwise incorporated by reference the key provisions of the Refugee...