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Asylum as a General Principle of International Law

Lookup NU author(s): Dr Maria-Teresa Gil-Bazo

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This is the authors' accepted manuscript of an article that has been published in its final definitive form by Oxford University Press, 2015.

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Abstract

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 well-known 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 paper explores the nature of asylum as a general principle of international law. It first examines the relationship between asylum and refugee status in order to place the discussion on asylum in context. It then outlines the current debate on asylum, and in particular, the nature of asylum as a right of individuals. The paper 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, it gives an indication of the value of this institution as one of the underlying principles in legal orders worldwide and as such, it informs international law itself. The paper 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. The continuous historical presence of asylum across civilizations and over time, as well as its crystallization in a norm of constitutional rank among States worldwide and in international instruments of regional scope suggests that asylum constitutes a general principle of international law and as such, it is legally binding when it comes to the interpretation of the nature and scope of States’ obligations towards individuals seeking protection.


Publication metadata

Author(s): Gil-Bazo M-T

Publication type: Article

Publication status: Published

Journal: International Journal of Refugee Law

Year: 2015

Volume: 27

Issue: 1

Pages: 3-28

Print publication date: 01/03/2015

Online publication date: 03/02/2015

Acceptance date: 02/08/2014

Date deposited: 27/10/2014

ISSN (print): 0953-8186

ISSN (electronic): 1464-3715

Publisher: Oxford University Press

URL: http://dx.doi.org/10.1093/ijrl/eeu062

DOI: 10.1093/ijrl/eeu062


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