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Right of asylum
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Right of asylum (or political asylum) 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). Political asylum should not be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis.
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Right of asylum (or political asylum) 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). Political asylum should not be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis. However, the two may somehow overlap, since each refugee may demand to be accorded on an individual basis political asylum. 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.
Medieval right of asylum
Many ancient peoples, including the Egyptians, the Greeks, and the 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 if this one 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 A.D. 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 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.
Modern political asylum
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 defoule' 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 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 a 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 - if it indeed keeps such a list, though Fidel Castro has certainly named the United States and its leaders as "terrorist(s)" or the equivalent on numerous occasions.
Right of Asylum in France
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:
- it invented the notion of "internal asylum": the request may be rejected if the foreigner may benefit from political asylum on a portion of the territory of the state
- the OFPRA (
Office français pour la protection des réfugiés et apatrides - French Office for the Protection of Refugees and Stateless Persons ) now makes a list of allegedly "safe countries" which respect political rights and principles of liberty. If the demander of asylum comes from such a country, the request is treated in 15 days, and receives no social assistance protection. They may contest the decision, but this does not suspend any deportation order. The first list, enacted in July 2005, included as "safe countries" Benin, Cape Verde, Ghana, Mali, Mauritius Island, India, Senegal, Mongolia, Georgia, Ukraine, Bosnia and Croatia. It had the effect of reducing in six months by about 80% the number of applicants from these countries. The second list, passed in July 2006, included Tanzania, Madagascar, Niger, Albania and Macedonia.
Thus, although the right of political asylum has been conserved in France in despite of the various anti-immigration laws, it has been severely restricted. 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.
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 refugees waiting to be accorded political asylum 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 notes 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) .
Right of Asylum in the United Kingdom
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 1894 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.
Right of Asylum in the United States
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 either apply for refugee status overseas, as well as those 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.
American citizens granted asylum abroad
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 New Zealand when they deplaned in the country, and sought asylum. This was granted three years later, for humanitarian reasons. Chere Lyn Tomayko has been granted asylum in June 2008 in Costa Rica for kidnapping Alexandria Camille Cyprian (born 1989) in 1997 for escaping domestic violence. She is in Costa Rica with with Alexandria Camille and another US-born daughter. She is currently married with a Costa Rican doctor and her two Costa Rica-born children.
See also
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