Asylum as a General Principle of International Law

Asylum, understood as ‘the protection that a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek it’, is a wellknown institution in international law and its historical roots in state practice are well established. Asylum is different from refugee status, as the former constitutes the institution for protection while the latter refers to one of the categories of individuals –among others- who benefit from such protection and the content of that protection. This article explores the nature of asylum as a general principle of international law. It first examines the relationship between asylum and refugee status to place the discussion in context. It then outlines the current debate on asylum and, in particular, the nature of asylum as a right of individuals. The article explores the normative nature of asylum through its historical practice, paying particular attention to the practice of states as reflected in their constitutional traditions. This constitutional focus responds to the normative character of constitutions. As asylum features in a significant number of constitutional texts across the world, the value of this institution as one of the underlying principles in legal orders worldwide is clear and, as such, it informs international law itself. The article shows that the long historical tradition of asylum as an expression of sovereignty has now been coupled with a right of individuals to be granted asylum of constitutional rank, which in turn is recognised by international human rights instruments of regional scope. This, and its continuous historical presence across civilizations and over time, suggests that asylum constitutes a general principle of international law that is legally binding when it comes to the interpretation of the nature and scope of states’ obligations towards individuals seeking protection. 1. In TR od u CTI on Asylum, understood as ‘the protection that a State grants on its territory or in some other place under the control of certain of its organs to a person who comes to seek it’, 1