Right of asylum (or political asylum, Greek: ἄσυλον [1]) is an ancient juridical notion, under which a person persecuted for political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a foreign country, or church sanctuaries (as in medieval times). This right has its roots in a longstanding Western tradition—although it was already recognized by the Egyptians, the Greeks and the Hebrews—Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc.; each state offered protection to foreign persecuted persons.
Political asylum is similar, but not identical, to modern refugee law, which deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered on a case-to-case basis. There is overlap between the two because each refugee may demand political asylum on an individual basis.
Contents |
The Egyptians, Greeks, and Hebrews recognized a religious "right of asylum," protecting criminals (or those accused of crime) from legal action to some extent. This principle was later adopted by the established Christian church, and various rules developed to qualify for protection and just how much protection it was.
According to the Council of Orleans in 511, in the presence of Clovis I, asylum was granted to anyone who took refuge in a church, in its dependences or in the house of a bishop. This protection was given to murderers, thieves or people accused of adultery. It also concerned the fugitive slave, who would however be handed back to his owner when his owner swore on the Bible not to be cruel. This Christian right of asylum was confirmed by all following councils.
In England, King Ethelbert made the first laws regulating sanctuary in about 600 AD. In the laws of king Ethelred, the term grith is used. By the Norman era after 1066, there had evolved two kinds of sanctuary: all churches had the lower-level kind (sanctuary within the church proper), but only churches licensed by the king had a broader version (sanctuary in a zone surrounding the church). There were at least twenty-two churches with charters for a broader kind of sanctuary, including Battle Abbey, Beverley (see image, right), Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester Cathedral, Westminster Abbey, and York Minster.
Sometimes the criminal had to get to the church itself to be protected, and might have to ring a certain bell there, or hold a certain ring or door-knocker, or sit on a certain chair ("frith-stool"), and some of these items survive at various churches. In other places, there was an area around the church or abbey, sometimes extending as much as a mile and a half, and there would be stone "sanctuary crosses" marking the boundary of the area; some of those still exist as well. Thus it could become a race between the felon and medieval law officers to the nearest sanctuary boundary, and could make the serving of justice upon the fleet of foot a difficult proposition.
Church sanctuaries were regulated by common law. An asylum seeker was to confess sins, surrender weapons, and be placed under the supervision of the head of the church or abbey where they had fled. They then had forty days to make one of two choices: surrender to secular authorities and stand trial for the alleged crimes, or confess their guilt and be sent into exile (abjure the realm), by the shortest route and never return without the king's permission. Anyone who did come back could be executed by the law and/or excommunicated by the Church.
If the suspect chose to confess their guilt and abjure, they would do so in a public ceremony, usually at the gate of the church grounds. They would surrender their possessions to the church, and any landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of protection under the church. Theoretically they would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitive never reached their intended port of call, becoming a victim of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape."
Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made.
Henry VIII changed the rules of asylum, reducing to a short list the types of crimes which were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James I in 1623.
During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England.
In 1470, when the Lancastrians briefly restored Henry VI to the throne, queen Elizabeth was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward IV was restored to the throne in 1471 and giving birth to their first son Edward V during that time. When King Edward IV died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.[1]
Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution." The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the defoulé refugee) is a person who is outside their own country's territory (or place of habitual residence if stateless) owing to fear of persecution on protected grounds. Protected grounds include race, nationality, religion, political opinions and membership and/or participation in any particular social group or social activities.
These are the accepted terms and criteria as principles and a fundamental part in The U.N. 1951 Convention Relating to the Status of Refugees' non-refoulement order.
Since the 1990s, sexual persecution has come to be accepted in some countries as a legitimate category for asylum claims, when the claimant can prove that the state is unable or unwilling to provide protection.
Some believe that the development in the 20th century of bilateral extradition treaties has endangered the right of asylum, although international law considers that a sovereign state has no obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders. Indeed, a state granting the right of sanctuary to an asylee will summarily and categorically reject a request of the country they fled from to extradite them, regardless of any extradition treaty. This is due to the fact that to be granted sanctuary by a state indicates that the state granting sanctuary regards the asylee as being illegally persecuted by the nation they fled from. Rendering the true victim of persecution to their persecutor is a particularly odious violation of a principle called non-refoulement, part of the customary and trucial Law of Nations.
A corollary of this principle is that the granting of asylum is tantamount to accusing (or at least strongly implying that) the nation an asylee fled from is illegally persecuting the asylee, and thus the granting of asylum by one state to a citizen or citizens of a particular state may be considered an unfriendly deed by the country the asylee(s) fled from, and retaliation, through the exercise of the right of reciprocity or the right of reprisal may occur. For example, the Government of Cuba has granted asylum to a number of persons that the Federal Government of the United States considers domestic terrorists or criminals. This has caused outrage in the United States, and resulted in the Federal Government of the United States listing Cuba as a state sponsor of terrorism. Similar grievances exist on the Cuban side, with the United States having granted asylum to a number of individuals which the Government of Cuba considers criminals, traitors, or terrorists, possibly as an exercise of the right of reciprocity, or the right of reprisal; however, the Government of Cuba apparently has not added the United States to its list of state sponsors of terrorism
The asylum in the European Union was formed since a half-century in its Member States by application of the Geneva Convention of 28 July 1951 on the Status of Refugees. It evolved as a result of common policies appearing in the 1990s in connection with the creation of the Schengen Agreement on the suppression of internal borders. The EU has set up a common policy on asylum so that unsuccessful asylum seekers do not make a new application in another country . This common policy began with the Dublin Convention in 1990. It continued through the implementation of Eurodac and the Dublin Regulation in 2003, and continues today (October 2009 adoption of two proposals by the European Commission [2]
Political asylum is recognized in France (droit d'asile) by the 1958 Constitution. It has been restricted due to immigration policies with the December 30, 1993 law, the Debré law of April 24, 1997, the May 11, 1998 law and the December 10, 2003 law. Henceforth, critics, including the Human Rights League (Ligue des droits de l'homme – LDH) have opposed what they see as a practical abandonment of a longstanding European judicial tradition.
Political asylum is also defined in France by the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952), the additional 1967 protocol; articles K1 and K2 of the 1992 Maastricht Treaty as well as the 1985 Schengen Agreement, which defined the European policy on immigration. Finally, right of asylum is defined by article 18 of the Charter of Fundamental Rights of the European Union.
On a purely judicial level, only four conditions may be opposed to the accordance of political asylum to someone who has proven being subject to persecution in their country: the presence of the alien represents a serious threat to public order; the request should be addressed by another sovereign state; the request has already been accepted in another state; or the request is an abuse on the system of political asylum.
The December 10, 2003 law has limited political asylum, giving two main restrictions:
Thus, although the right of political asylum has been conserved in France in spite of the various anti-immigration laws, it has been restricted to some extent. Some people claim that, apart from the purely judicial level, the bureaucratic process is also used to slow down and ultimately reject what might be considered as valid requests. According to Le Figaro, France granted 7,000 people the status of political refugee in 2006, out of a total of 35,000 requests; in 2005, the OFPRA in charge of examining the legitimacy of such requests granted less than 10,000 from a total of 50,000 requests.[4]
Numerous exiles from South American dictatorships, in particular from Augusto Pinochet's Chile and Argentina, were received in the 1970s-80s. As a current example, since the 2001 invasion of Afghanistan, tens of homeless Afghan asylum seekers have been sleeping in a park in Paris near the Gare de l'Est train station. Although their demands haven't been yet accepted, their presence has been tolerated. However, since the end of 2005, NGOs have been noting that the police separate Afghans from other migrants during raids, and expel in charters those who have just arrived at Gare de l'Est by train and haven't had time to make the demand for asylum (a May 30, 2005 decree requires them to pay for a translator for helping them in official formalities) [3].
In the 19th century, the United Kingdom accorded political asylum to various persecuted people, among whom were many members of the socialist movement (including Karl Marx). With the 1845 attempted bombing of the Greenwich Royal Observatory and the 1911 Siege of Sidney Street in the context of the propaganda of the deed anarchist actions, political asylum legislation was restricted.
The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for refugee status overseas, as well as those applying for asylum after arriving in the U.S., are admitted annually.
As noted in the article specifically about asylum and refugees in the United States, since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. During much of the 1990s, the United States accepted over 100,000 refugees per year, though this figure has recently decreased to around 50,000 per year in the first decade of the 21st century, due to greater security concerns. Still, of the top ten countries accepting resettled refugees in 2006, the United States accepted more than twice as many as the next nine countries combined. As for asylum seekers, the latest statistics show that 86,400 persons sought sanctuary in the United States in 2001.[5] Prior to the September 11 attacks individual asylum applicants were evaluated in private proceedings at the U.S. Immigration and Naturalization Services (INS).
Despite this generosity, there are serious problems with the U.S. asylum and refugee determination processes. A recent empirical analysis by three legal scholars described the U.S. asylum process as a game of refugee roulette; that is to say that the outcome of asylum determinations depends in large part on the identity of the particular adjudicator to whom an application is randomly assigned, rather than on the merits of the case. The very low numbers of Iraqi refugees accepted between 2003 and 2007 exemplifies concerns about the United States' refugee processes. The Foreign Policy Association reported that "Perhaps the most perplexing component of the Iraq refugee crisis... has been the inability for the U.S. to absorb more Iraqis following the 2003 invasion of the country. To date, the U.S. has granted less than 800 Iraqis refugee status, just 133 in 2007. By contrast, the U.S. granted asylum to more than 100,000 Vietnamese refugees during the Vietnam War." [6]
The 2000 documentary film Well-Founded Fear, from filmmakers Shari Robertson and Michael Camerini marked the first time that a film crew was privy to the (above mentioned) private proceedings at the U.S. Immigration and Naturalization Services (INS), where individual asylum officers ponder the often life-or-death fate of the majority of immigrants seeking asylum. It provided the first high-profile, behind-the-scenes look at the process for seeking asylum in the United States. The film was featured at the Sundance Film Festival, documentary competition and was broadcast in June, 2000 on PBS as part of POV.
Holly Ann Collins, together with her three children, were the first Americans to be granted asylum in the Netherlands, in June 1994, on the grounds of abuse. The family were in transit to Netherlands when they disembarked in the country, and sought asylum. This was granted three years later, for humanitarian reasons.[7] None of the American judges in Collins' case agreed with her accounts of alleged abuse and other key events in her case. Chere Lyn Tomayko has been granted asylum in June 2008 in Costa Rica for kidnapping Alexandria Camille Cyprian (born 1989) in 1997 for escaping alleged domestic violence. Tomayko's accounts of domestic violence were disputed by several accounts in the U.S.
|
|||||||||||||||||||||||||||||||||||||