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Public International Law Asylum and refugees

Public International Law Asylum and refugees. Asylum. Is there a difference between being granted asylum and being granted the status of a refugee? The word "asylum" comes from the Ancient Greek. It means freedom from being seized.

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Public International Law Asylum and refugees

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  1. Public International Law Asylum and refugees

  2. Asylum • Is there a difference between being granted asylum and being granted the status of a refugee? • The word "asylum" comes from the Ancient Greek. It means freedom from being seized. • The institution of asylum was widespread in Europe in Antiquity, the Middle Ages and early Modern Era. It was of predominantly religious nature. It was employed both on the international and intranational stage (what's the difference?). • Religious and intranational asylum was abolished in the early Modern Age (France 1539, Spain 1570, England 1625), as it was seen as a challenge to secular power. Which form of government was emerging in Europe at the time?

  3. Asylum • H. Grotius and E. de Vattel believed that the right to petition for asylum stems forth from the law of nature. Territorial asylum was considered to be a logical consequence of the sovereignity of states, with possible limitations emerging from treaties. What historical events shaped this doctrine? • Initially, granting asylum was entirely arbitrary and a part of the discretional powers. • Article 120 of the 1793 French Constitution: France grants asylum to freedom fighters and denies it to tyrants. • XIX century – asylum is regulated in most European constitutions.

  4. Asylum • Despite becoming a legal institution, asylum retained political conotations (2003 Polish Law on granting protection to foreigners, art. 90.1 – important interest of the state). • The institution of asylum is regulated differently in various states: • Mentioned in the constitution, without specifying the grounds for granting it (France, Germany, Hungary, Cuba), • Legal grounds for granting it specified in the constitution (Poland, Yugoslavia, USSR), • Regulated outside of the constitution (Finland, Sweden, Belgium, USA).

  5. Asylum • J. Symonides – granting asylum is a moral, not legal rule. • 1950 ICJ case Colombia v Peru (Asylum Case), 1949, Victor Haya de la Torre – is there a basis for granting asylum in customary law? • Is there a basis in positive law (treaties)? In which branch of this system should we look for it? • 1948 Universal Declaration of Human Rights – art. 14.1. Is it binding? The majority of states opposed asylum as an individual right. • J. Białocerkiewicz – individual right to asylum is necessary to enforce the international ban on torture and discrimination.

  6. Asylum • Regional treaties: • 1928 Havana Convention, 1933 Montevideo Convention, 1954 Caracas Convention on diplomatic asylum (Organization of American States) • 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (Organization of African Unity – what is the successor?) • 1969 American Charter on Human Rights (art. 22.7), 1981 African Charter on Human and Peoples' Rights (art. 12.3) – persecuted individuals have the right to petition for asylum in a foreign state, pursuant ot its laws. • Art. 22.8 of the American Charter – foreigners cannot be deported to states in which they could be in danger because of their individual characteristics.

  7. Asylum • Consequences of granting asylum: • Protection on the territory of the granting state and of other states • The right to settle down • No deportation without revoking asylum first • Granting asylum cannot be considered a hostile act, as it falls under the sovereignity of the granting state Diplomatic asylum – granted by the chief of a diplomatic mission – is it compatible with the functions of diplomatic missions?

  8. Asylum • Basis for granting asylum – commiting a political crime, persecution or the threat of it. • Draft of the 1977 UN Asylum Convention – positive and negative grounds for granting asylum. • Differences between asylum and the status of a refugee: • Asylum is granted solely by states. • Asylum is more discretionary. • There are no universal legal norms regulating asylum. • Asylum is not an individual right.

  9. Refugees • Similarly to human rights, laws regarding refugees were drafted as a response to the Second World War and the accompanying humanitarian crisis. • 30 million refugees in the world • 1951 Geneva Convention Relating to the Status of Refugees • Art. 1A – a refugee is a person who: • left the state of their citizenship or domicile, • cannot go back due to persecution caused by their race, religion, nationality, social standing or political beliefs; or the threat of persecution, • is not already under the protection of another state.

  10. Refugees Art. 1C - the Convention shall cease to apply to any person who: • voluntarily asked for protection of the state of which he/she is a citizen • having lost citizenship, voluntarily accepted it back • has acquired new citizenship and benefits from the protection of the state whose citizenship has been adopted • voluntarily settled in the country she left or outside of which she was abroad due to fear of persecution • can no longer refuse to use the protection of his/her country of citizenship, because the conditions under which he was recognized as a refugee have ceased to exist.

  11. Prawo międzynarodowe • Art 1D and 1F - the Convention does not apply a person who: • is currently using the protection or assistance of United Nations bodies or agencies other than the United Nations High Commissioner for Refugees • in relation to which there are serious grounds for believing that they committed a crime against peace, war crimes or crimes against humanity • has committed a serious non-political crime outside the country that adopted it, before being recognized as a refugee • is guilty of acts contrary to the purposes and principles of the United Nations

  12. Refugees • What's the difference between a refugee and an economic immigrant? • Are all political immigrants covered by this definition? • Who is the possible perpetrator of persecution? • What is persecution? Does it require a war? • Are people of no citizenship (stateless persons) covered by the Convention?

  13. Refugees • What's the difference between „shall cease to apply“ and „does not apply“? • Positive and negative grounds • The territorial and temporal scope of the Convention – 1st of january 1951, Europe • 1967 Protocol to the Convention • Race - all ethnic groups considered to be races in the colloquial sense (as there is no legal or scientific definition of a race) • Persecution due to religion - takes various forms of either prohibitions (from belonging to a religious group, private or public practicing of faith) or orders (adopting a specific religion)

  14. Refugees Nationality - it should not be equated with citizenship, because the Convention also protects stateless persons • Belonging to a specific social group can become a reason for persecution due to the activity of its members in various areas of life: economy, politics, culture. • According to an interpretation by the Office of the UN High Commissioner for Refugees, this category also includes cases of women persecuted based on their sex. In 1985, members of the UNHCR Executive Committee found that women who were subjected to violence in violation of religious principles or customs are protected under the Convention on Refugee Status.

  15. Refugees - Persecution because of political beliefs occurs, when the views of an individual do not coincide with the views expressed by the state authorities or with the opinions of the majority. - However, the mere fact of having political beliefs different from the state or the majority of society is not a sufficient basis for applying for refugee status. The interested person has to prove, that with different political convictions comes a fear of persecution.

  16. Refugees • International Covenant on Civil and Political Rights in art. 13 prohibits the expulsion of a foreigner legally residing in the territory of a given country • Convention on the Rights of the Child of 1989 in art. 22. instructs the signatory States to take appropriate steps to ensure protection for a child applying for refugee status or recognized as a refugee under international law.

  17. Refugees • European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The Fourth Protocol to this Convention prohibits the collective expulsion of foreigners. Articles 13 and 14 are of greatest importance. The creators of the Declaration recognized the inviolable freedom of movement and settlement of every human being within the borders of any state and the right to leave its territory and the area of ​​its own country and return to its state. In art. 14, it is stated that every person in the event of persecution may apply for asylum or use it in other countries. • International law - mainly substantive, the procedure is regulated by individual states

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