Discuss the scope of right of asylum under International Law and explain 'territorial' and 'extra-territorial' asylum.

Defining the Right of Asylum

The right of asylum is the right of a state to grant protection to a person who is fleeing persecution, war, or other forms of violence. It is a principle rooted in humanitarian concerns and is considered a fundamental right, although its precise legal basis is complex. It's not absolute and is subject to limitations based on state security and international obligations.

Territorial Asylum

Territorial asylum refers to the granting of asylum within a state’s own territory. This is the most widely recognized and accepted form of asylum.

• Characteristics: A state granting territorial asylum is not obligated to explain its decision or provide reasons for accepting or rejecting an asylum seeker. It is considered a discretionary power.
• Obligations: The state is obligated to protect the asylee from return to the persecuting country.
• Non-interference: The asylee is expected not to engage in political activities within the host country that could destabilize the persecuting state. This is the principle of "non-interference."
• Example: During the Cold War, numerous Eastern European dissidents sought and received territorial asylum in Western embassies and consulates.

Extra-Territorial Asylum

Extra-territorial asylum, also known as diplomatic asylum, is the granting of asylum by a state to a person located within the territory of another state, typically within the host state’s embassy or consulate. This is a more controversial and less common form of asylum.

• Characteristics: It involves a state challenging the sovereignty of another state by offering protection to a person within its territory.
• Legal Basis: It is not explicitly recognized in international law but is based on customary practice and humanitarian considerations.
• Risks: It can create significant diplomatic tensions and is often viewed as an interference in the host state's internal affairs.
• Conditions: The host state must be willing to accept the asylee, and the persecuting state must be willing to allow the asylee’s departure.
• Example: The case of Julian Assange, who sought refuge in the Ecuadorian embassy in London for several years, is a contemporary example of extra-territorial asylum. Ecuador granted him asylum, citing concerns for his human rights.

Comparison: Territorial vs. Extra-Territorial Asylum

Feature	Territorial Asylum	Extra-Territorial Asylum
Location	Within the state's own territory	Within another state's territory (embassy/consulate)
Legal Basis	Stronger customary international law basis	Based on customary practice & humanitarian considerations, more controversial
Diplomatic Implications	Minimal	Significant potential for diplomatic tension
Acceptance	Generally accepted	Less common and often contentious

Limitations and Obligations

While the right of asylum is a recognized principle, states are not obligated to grant asylum to everyone who requests it. Several limitations and obligations exist:

• 1951 Refugee Convention: Although the Convention doesn’t explicitly define asylum, it establishes the definition of a refugee and outlines the rights and obligations of states regarding refugees.
• Non-Refoulement: A fundamental principle is non-refoulement – the prohibition against returning a refugee to a country where they face persecution.
• Exclusion Clauses: States can exclude individuals from refugee status or asylum if they have committed serious crimes or pose a threat to national security.
• Subsidiary Protection: Individuals who do not qualify as refugees under the 1951 Convention may still be entitled to subsidiary protection if they face serious harm in their country of origin.

Contemporary Challenges

The scope and application of the right of asylum are constantly evolving due to emerging challenges:

• Climate Change: Increasing numbers of people are being displaced by climate-related disasters, raising questions about whether they qualify for asylum.
• Mass Migration: Large-scale movements of people due to conflict, poverty, and political instability are straining asylum systems.
• National Security Concerns: States are increasingly balancing humanitarian obligations with concerns about national security and border control.

Case Study: Rohingya Refugee Crisis

The Rohingya refugee crisis, beginning in 2017, exemplifies the complexities of asylum. Hundreds of thousands of Rohingya Muslims fled Myanmar due to violence and persecution, seeking refuge primarily in Bangladesh. While Bangladesh has provided humanitarian assistance, the international community's response regarding durable solutions (including asylum) remains a challenge. The crisis highlights the limitations of existing asylum frameworks and the need for greater international cooperation.

The right of asylum remains a vital principle of international law, offering protection to vulnerable individuals facing persecution. While territorial asylum enjoys broader acceptance, extra-territorial asylum presents unique diplomatic challenges. The evolving landscape of global displacement, exacerbated by climate change and conflict, necessitates a reevaluation of asylum frameworks and a commitment to upholding humanitarian principles while addressing legitimate security concerns. Strengthening international cooperation and adhering to the principle of non-refoulement are crucial for ensuring the effective protection of asylum seekers worldwide.