Asylum is a Latin word and it derives its origin from a Greek word “Asylia” meaning inviolable place. The term asylum in common parlance means giving protection and immunity by a state to an individual from their native country.
In day to day conversation, the term asylum is used interchangeably with the term refugee, there is a difference between the two procedurally where a person who is still overseas seeks protection from a nation when given patronage after reaching there is given the title of a refugee whereas in asylum the person seeks the protection from a nation after reaching there and hence is known as asylee or asylum seeker.
Asylum is interpreted as a place of protection or refuge for a fugitive where he/she is given protection from trial and pursuit from their home country or to provide protection to a foreign citizen by a state against his own government.
The main purpose of asylum is to give shelter to those who have well-rounded fear in their home countries of persecution. The Universal Declaration of Human Rights under article 14, provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
The idea of Asylum remains that of personal immunity from the authoritative steps of a decision-maker than that of jurisdictional authority under whose power it falls. There are mainly two forms of Asylum:
(1) Territorial Asylum:
It is granted in the territorial boundary of a state providing asylum. Every sovereign state has the right to control and maintain jurisdiction on its territory, hence the decision to extradite someone or give them asylum is totally under its discretion.
Thus a state has territorial sovereignty over all its subjects and aliens. This form of asylum is mainly given to people who have been accused of political offenses like sedition, treason, and espionage in their home country. Territorial asylum is based mainly on the national law of the sovereign.
(2) Extra-territorial Asylum:
This form of asylum is usually granted by a state beyond its state territory and usually at places which are not a part of its physical territory. In such case, a state providing asylum in its embassy established in a foreign state is called Diplomatic Asylum.
Asylum may also be granted to asylee in Warships because they are exempted from the jurisdiction of the foreign state in whose water it is operating. Such warships are under the patronage of the Flag state.
The same is not the case with merchant’s vessels as they are not immune to the provisions of international law. Hence, Extra-territorial Asylum is based on the framework of International Law Conventions.
The contemporary reasoning or rationale behind asylum must be understood via Rationale Materiae (Jurisdiction over subject matter) and Rationale Personae (Jurisdiction over a person). A sovereign state has the right to exclude the involvement or interference by another sovereign over its territory.
This principle of sovereignty forms the basis for Territorial Asylum and by the very nature of this principle, it finds its extension to consulates, embassies, vessels, aircrafts belonging to the sovereign state.
In recent times, we have seen high profile individuals like Julian Assange and Edward Snowden seeking asylum under Ecuador and Russia respectively. In case if Julian Assange, the founder of WikiLeaks organization, he sought extraterritorial asylum under Ecuadorian Embassy after his extradition was approved by the UK to Sweden.
Whereas, Edward Snowden after exposing NSA illegal spying program sought refuge under territorial asylum after entering the territory of Russia.
Rationale Personae explains that certain individuals due to immunity granted to them due to their position or capacity, are not under the jurisdictional control of a state which would otherwise have exercised jurisdiction over them due to territorial sovereignty.
This form of special immunity is applicable to Diplomats, Heads of State, government officials on a certain mission, etc.