Part 2 Asylum, 8 The Concept of Asylum

This chapter focuses on the concept of asylum. The meaning of the word ‘asylum’ tends to be assumed by those who use it, but its content is rarely explained. The Universal Declaration of Human Rights refers to ‘asylum from persecution’, the UN General Assembly urges the grant of asylum and observance of the principle of asylum, and many States’ constitutions and laws offer the promise of asylum, yet nowhere is this act of States defined. A distinction may be made between the clear, discretionary, sovereign right of States to grant asylum without it being considered a hostile act, which other States are bound to respect; and the individual right to asylum, which thus far has only been explicitly recognized in some regional human rights instruments and national constitutions, but not in any treaty applying universally. While individuals may not be able to claim a right to be granted asylum, States have a duty under international law not to obstruct the individual’s right to seek asylum. This includes the obligation to provide access to an asylum procedure (refugee status determination), which necessarily calls into question the legality of non-arrival and non-admission policies increasingly employed by States as tools of migration control.