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Public International Law

Climate Refugees

The term “environmental refugees” is one of the many phrases that are used to describe people who move due to changes in the environment around them. Climate refugees are people who must leave their homes and communities because of the effects of climate change and global warming. Climate change is caused by natural events, such as volcanic eruptions, etc.,

While it’s true that the term “environmental refugees” is often used interchangeably with “climate refugees” to describe people who are forced to move due to environmental changes, there are some distinctions between the two terms.

  1. Environmental Refugees: This term encompasses individuals or groups who are compelled to leave their homes or communities due to various environmental factors, which can include natural disasters like volcanic eruptions, as well as human-induced environmental changes such as deforestation, land degradation, and pollution. Environmental refugees may also be displaced due to factors like soil erosion, water scarcity, or habitat destruction.
  2. Climate Refugees: On the other hand, climate refugees specifically refer to people who are displaced because of the impacts of climate change and global warming. While natural events like volcanic eruptions can contribute to climate variability, climate change primarily results from long-term shifts in temperature patterns, precipitation, and weather extremes due to human activities such as burning fossil fuels, deforestation, and industrial processes. Climate refugees are those who must leave their homes and communities because of these effects, which can include sea-level rise, extreme weather events, droughts, and desertification.

Climate refugees are individuals or groups of people who are forced to flee their homes or communities due to the effects of climate change, including but not limited to rising sea levels, extreme weather events, drought, desertification, and other environmental disasters. These individuals may be displaced within their own country or seek refuge in other countries, often facing significant challenges such as loss of livelihoods, food and water scarcity, inadequate shelter, and social and economic disruptions. Climate refugees are a growing concern as climate change exacerbates environmental pressures and leads to increased displacement of populations worldwide. However, it’s important to note that the legal status of climate refugees and their rights remain complex and often inadequately addressed within existing international frameworks.

Climate refugees are people who must leave their homes and communities because of the effects of climate change and global warming.

International refugee law. However, they may be applicable to individuals who do not meet the specific criteria outlined in the Refugee Convention but still face serious harm if returned to their home countries due to environmental factors such as climate change. These complementary forms of protection acknowledge the evolving nature of displacement and seek to address gaps in traditional refugee law frameworks.

International case laws:

As of my last update in January 2022, there weren’t many case laws specifically addressing climate refugees, primarily because there is no internationally recognized legal framework for climate refugees. However, there have been some cases where individuals have sought asylum or other forms of protection based on environmental factors, including climate change. Here are a few notable examples:

  1. Ioane Teitiota v. Chief Executive of the Ministry of Business, Innovation, and Employment (New Zealand, 2013): Ioane Teitiota, a Kiribati national, sought asylum in New Zealand, arguing that he should be considered a climate refugee due to the impacts of sea-level rise on Kiribati. His case gained international attention as one of the first legal challenges based on climate change-related displacement. However, in 2013, the New Zealand courts rejected his appeal for refugee status, stating that his situation did not meet the legal definition of a refugee under the Refugee Convention.
  2. Maugeri v. Italy (European Court of Human Rights, 2015): This case involved a family from Italy who sought asylum in Switzerland, citing environmental degradation and health risks due to pollution in their hometown. While not explicitly about climate change, it underscores the broader issue of environmental harm leading to displacement and the legal challenges of seeking protection under existing asylum laws.
  3. UN Human Rights Committee Decision (2020): In a landmark decision, the UN Human Rights Committee ruled in favor of Ioane Teitiota (mentioned above) in a complaint against New Zealand, stating that countries may not deport individuals who face risks arising from climate change-induced environmental degradation. While this decision does not establish a new legal category for climate refugees, it acknowledges the intersection between human rights law and climate-induced displacement.

These cases highlight the complexity of addressing climate-induced displacement within existing legal frameworks and the need for further international cooperation and legal development to protect vulnerable populations affected by climate change. As the impacts of climate change continue to worsen, it’s likely that more cases related to climate refugees will emerge, potentially shaping future legal interpretations and responses.

Indian case laws:

As of my last update in January 2022, there haven’t been significant case laws specifically addressing climate refugees in India, mainly because India, like many other countries, does not have a legal framework specifically recognizing climate refugees. However, India faces various environmental challenges, including those exacerbated by climate change, and there have been instances of people being displaced due to these factors. Here are a few examples:

  1. Gujarat Floods and Cyclone Cases: India frequently experiences floods and cyclones, which can lead to significant displacement of people. While these cases may not explicitly address climate change as the primary cause of displacement, they underscore the broader issue of environmental displacement. Courts in India have handled cases related to compensation, rehabilitation, and relief for those affected by floods and cyclones.
  2. Narmada Bachao Andolan (NBA) Movement: The NBA movement has been advocating for the rights of people displaced by the construction of dams on the Narmada River. While the primary concern of the movement is not climate change, it highlights the issue of displacement due to large-scale development projects, which can be exacerbated by changing environmental conditions.
  3. Legal Challenges to Environmental Degradation: Various environmental organizations and activists in India have filed lawsuits against industries and government agencies for environmental degradation, such as air and water pollution, deforestation, and habitat destruction. While not explicitly about climate refugees, these cases reflect a broader concern about the impacts of environmental degradation on communities and ecosystems.
  4. Kerala Floods (2018) and Chennai Floods (2015): These catastrophic flooding events led to widespread displacement and destruction of homes and infrastructure. While there haven’t been specific legal cases related to climate refugees arising from these events, they highlight the vulnerability of communities to extreme weather events exacerbated by climate change.

While India does not have specific case laws addressing climate refugees, the country is increasingly recognizing the importance of addressing climate-induced displacement through policies and programs focused on disaster risk reduction, adaptation, and resilience-building. As climate change continues to impact vulnerable communities in India, it’s likely that legal challenges related to climate-induced displacement will become more prominent, potentially shaping future legal responses and frameworks.

Conclusion:

Climate refugees are individuals or groups forced to leave their homes due to environmental disruptions caused by climate change. Despite the increasing recognition of this phenomenon, there is currently no international legal framework specifically addressing the protection of climate refugees. However, complementary forms of protection may offer some avenues for assistance to those affected by climate-induced displacement.

Political Asylum

Political asylum is a form of protection granted by a country to individuals who have fled their own country due to persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. The grant of political asylum allows individuals to reside in the country that has offered them asylum and protects them from being returned to their home country, where they may face persecution or harm. This protection is typically granted under international law and various national legal frameworks.

Asylum status and refugee status are differentiated by where individuals seek protection and benefits under each status. Asylum is requested within the United States, whereas refugee status is sought outside the U.S. Eligibility for both asylum and refugee status is governed by federal law, particularly the Refugee Act of 1980.

The U.S. Attorney General may grant asylum to individuals who demonstrate a well-founded fear of persecution in their home country. Asylum entails protection from persecution by a sovereign entity in one’s country of origin. Before being granted asylum, individuals must fulfill various procedural requirements. Additionally, asylum may be denied under certain circumstances, such as if the applicant has committed a serious crime.

For individuals residing outside the U.S., asylum can be applied for at a U.S. embassy in their country. If seeking asylum upon entering the U.S., individuals can do so at the port of entry, such as an airport or border. Even if present in the U.S. illegally, individuals can apply for asylum within one year of arrival. Exceptions to the one-year rule exist if circumstances change and cause a delay in the application process.

In the U.S., asylum can be sought by submitting a petition to the United States Citizenship and Immigration Services (USCIS). If individuals are already undergoing removal or deportation proceedings, their case will be adjudicated by a federal immigration judge.

political asylum in India

Political asylum in India refers to the protection and refuge provided by the Indian government to individuals who have fled their home countries due to persecution or a well-founded fear of persecution based on their political opinions, beliefs, or affiliations.

India, like many other countries, adheres to principles of international law and humanitarianism and may grant asylum to individuals who face persecution in their home countries. The decision to grant asylum in India is typically made on a case-by-case basis, considering various factors such as the individual’s circumstances, the credibility of their claims, and the prevailing political situation in their home country.

India does not have a specific law governing the process of seeking asylum, but it is generally guided by principles of international law and treaties to which India is a signatory. Asylum seekers in India may approach the United Nations High Commissioner for Refugees (UNHCR) office in India for assistance and guidance in the asylum application process.

It’s important to note that the process and criteria for granting asylum may vary depending on the individual circumstances and the policies of the Indian government at the time. Additionally, asylum seekers in India may face challenges such as lengthy processing times, bureaucratic hurdles, and limited resources for support and integration.

Notable instances or principles related to political asylum in India:

  1. Tibetan Refugees: India has a long-standing history of providing refuge to Tibetan refugees, including the Dalai Lama, following the Tibetan uprising in 1959. These refugees were granted asylum due to the political persecution they faced in Tibet under Chinese rule.
  2. Bangladeshi Author Taslima Nasrin: Taslima Nasrin, a Bangladeshi author, sought political asylum in India in the 1990s due to death threats and persecution in Bangladesh over her controversial writings. India granted her temporary asylum and provided her with protection.
  3. Ahmed Qureshi Case: In 2016, an Afghan national named Ahmed Qureshi, who claimed to be persecuted by the Taliban, applied for asylum in India. His case highlighted the challenges and complexities of the asylum process in India, including issues related to documentation and procedural hurdles.
  4. Rohingya Refugees: In recent years, India has been grappling with the issue of Rohingya refugees fleeing persecution in Myanmar. The Indian government’s stance on providing asylum to Rohingya refugees has been contentious, with some cases ending up in court for legal resolution.

These examples illustrate some of the instances where political asylum has been sought or granted in India.

State recognition 

An existing state, an old state that has vanished and reappears, or the division of an existing state into two States are all ways that new states are created. It is crucial to obtain recognition as a state if a new state possesses specific rights, privileges, and obligations. But before a State is regarded as a State, there are a few minimal requirements. For a State to be regarded as a sovereign State, it must first obtain De Jure recognition (when a state is acknowledged legally). Whether to award recognition or not depends in large part on political philosophy. It must establish relations with the other States in existence in order to be recognized as a State.

The word “Recognition” refers to the ratification, confirmation, or acknowledgement that something done in one’s name by another person was legitimate.Recognizing an entity does not only mean that it has met the necessary criteria; it also means that the state doing the recognizing will interact with the entity being recognized and grant it the privileges and immunities that are typically associated with recognition under domestic law. Therefore, it is asserted that political viewpoints rather than legal justifications typically determine whether something is recognized or not. It is appropriate because it serves the interests of the State to establish relations with a foreign State and grant her some privileges. As a result, when States decide whether to recognize something, they will undoubtedly assess its benefits and drawbacks.

Definition:

“In recognizing a state as a member of international community, the existing states declare that in their opinion the new state fulfills the conditions off statehood as required by International law” (Oppenheim)

Is there a duty to acknowledge? According to Lauterpacht and Guggenheim, acknowledgment is not only required but also constitutive. This point of view has drawn criticism for being inconsistent and having no connection to state practice. In the words of Browlie, “recognition is an optional and political act and there is no duty in this regard.”

Essentials for recognition as a state under Public International Law

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down following essentials that an entity should possess in order to acquire recognition as a state:

  • Population;
  • Territory;
  • Government;
  • Sovereignty;
  • Control should tend towards permanency.

If these conditions are fulfilled, then the State can be recognized

Theories of recognition

The recognition of a new entity as a sovereign state is based on two main theories:

  1. Consecutive Theory

According to the sequential theory of state recognition in international law, a state must be acknowledged as a sovereign by all other states in order for it to be regarded as an international person. According to the subsequent conception of state recognition in international law, a State only acquires the status of an international person and becomes subject to international law after being recognized. Therefore, unless an entity is recognized by the existing States, even though it exhibits all the qualities of a state, it does not acquire the status of an international person.

Criticism of the consecutive theory of state recognition in International Law

This theory has been criticised by several jurists. Few of the criticisms of this theory are:

  • This theory is criticised because unless a state is recognised by other existing states, rights, duties and obligations of statehood community under International Law is not applicable to it.
  • This theory also leads to confusion when a new state is acknowledged and recognised by some of the existing states and not recognised by other states.

2. Declaratory Theory

In support of the Declaratory Theory of Statehood, Wigner, Hall, Fisher, and Brierly are the leading figures. This theory holds that any new state can form without the approval of any current states. According to Article 3 of the Montevideo Conference from 1933, this hypothesis has been established. According to this theory, a new state’s existence is independent of whether or not it is acknowledged by an older one. Under international law, a new state has the right to preserve its integrity and independence even before being acknowledged by other governments.

Criticism of the declaratory theory of state recognition in International Law

The declaratory theory of statehood has also been criticised. This declaratory theory of state recognition in International Law has been criticised on the ground that this theory alone cannot be applicable for recognition of a state. When a state having essential characteristics comes into existence as a state, it can exercise international rights and obligations and here comes the application of declaratory theory, but when other states acknowledge its existence and the state gets the legal rights of recognition, the consecutive theory comes into play.

Modes of Recognition of State in International Law

  1. De facto Recognition.
  2. De jure Recognition.

These are the two modes of recognition of State in International Law.

 De facto Recognition of States under International Law

It is the process of acknowledging a new state by a non-committal act.

  • De facto recognition is a provisionally grant.
  • It is the first step to the next mode of recognition.
  • It is a temporary and factual recognition as a state
  • It can either be conditional or without any condition.
  • A test of control for newly formed states.

When the other existing countries have an opinion that the new state does not have enough capacity but the new state holds a sufficient territory and control over a particular territory.

Example: The Soviet Union was de facto recognized by the government of the UK in 1921

De jure recognition of States under International Law

When the other existing countries have an opinion that the new state has all the eligible capacity then such state will be recognized by the de jure recognition. To grant recognition under the de jure method there is no need for the fulfillment of the first mode.

  • It is granted when the newly formed state acquires permanent stability and statehood.
  • It grants the permanent status of a newborn state as a sovereign state.

Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.

In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect to the internal acts of the recognized authority. This was held in the case Luther v. Sagar . [(1921)3 KB 532]

The distinction between De Facto and De Jure Recognition of State in International Law

S.No.De facto Recognition of StateDe jure Recognition of State
1.De facto recognition is a provisional and factual recognition.De jure recognition is legal recognition.
2.De facto recognition is granted when there is the fulfilment of the essential conditions of statehood.De jure recognition is granted when the state fulfils all the essential condition of states along with sufficient control and permanency.
3.De facto recognition is a primary step towards grant of de jure recognition.De jure recognition can be granted either with or without grant of de facto recognition.
4.De facto recognition can either be conditional or non-conditional.De jure recognition is a final and non-conditional recognition
5.De facto recognition is revocable in nature.De jure recognition is non-revocable.
6.The states recognised under this mode have only a few rights and obligations against other states.The state recognised under this mode have the absolute right and obligations against other states.
7.The state with de facto cannot undergo state succession.The state with de jure recognition can under state succession.
8.The state with de facto recognition cannot enjoy full diplomatic immunities.The state with de jure recognition enjoys full diplomatic immunities.

Conclusion

A necessary step for a state to take use of all the rights associated with statehood under international law is state recognition. Different jurists have argued for and against the Consecutive Theory and Declaratory Theory of Recognition, but we can infer that the theory used for recognition is somewhere between the two.

De jure or de facto, the recognition confers rights, privileges, and obligations. De jure recognition confers absolute rights, liabilities, and privileges on a state; de facto recognition confers only limited rights, privileges, and duties. There are too many political influences coming from the state’s recognition on the global stage.

There are numerous examples of powerful states putting up barriers to a newly constituted state being recognized. When the recognizing state believes the new state does not meet the requirements to be a sovereign state, withdrawal may even be an option. The modes of recognition, i.e., de facto and de jure recognition, vary from situation to case and can be done in either an express form or an implicit form.

International court of justice

The International Court of Justice (ICJ) is the principal judicial body of the United Nations. The role of the ICJ is to settle, in accordance with international law, legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

  • ICJ was established in 1945 by the United Nations charter and started working in April 1946.
  • It is the principal judicial organ of the United Nations, situated at the Peace Palace in The Hague (Netherlands).
  • Unlike the six principal organs of the United Nations, it is the only one not located in New York (USA).
  • It settles legal disputes between States and gives advisory opinions in accordance with international law, on legal questions referred to it by authorized United Nations organs and specialized agencies.
  • It has 193 state parties and current President is Joan E. Donoghue.

The firsts of International Court of Justice:

  • The election of first members of the International Court of Justice took place on February, 1946.
  • The first elected president of International Court of Justice was JosĂŠ Gustavo Guerrero of El Salvador. He was also the last president of Permanent Court of International Justice.
  • The first case of International Court of Justice was submitted in May 1947.
  • The first nation to submit the case was United Kingdom against Albania concerned to the incidents of the Corfu Channel

Role of the Court

The Court has a twofold role:

  1. to settle, in accordance with international law, legal disputes between States (contentious function); and
  2. to give advisory opinions on legal questions referred to it by duly authorized UN organs and agencies (advisory function).
  • Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods for the pacific settlement of disputes between States. Some of these methods involve the services of third parties.
  • Historically, mediation and arbitration preceded judicial settlement. The former was known in ancient India and the Islamic world, whilst numerous examples of the latter can be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe, and in Papal practice.
  • The modern history of international arbitration:
    • The first phase is generally recognized as dating back from the so-called Jay Treaty of 1794 between the United States of America and Great Britain.
    • The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, even more decisive, phase.
    • The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration.
  • With respect to arbitration, the 1899 Convention provided for the creation of permanent machinery, known as the Permanent Court of Arbitration, established in 1900 and began operating in 1902.
  • The Convention also created a permanent Bureau, located in The Hague, with functions corresponding to those of a court registry or secretariat, and laid down a set of rules of procedure to govern the conduct of arbitrations.
  • Various plans and proposals submitted between 1911 and 1919, both by national and international bodies and by governments, for the establishment of an international judicial tribunal, which culminated in the creation of the Permanent Court of International Justice (PCIJ) as an integral part of the new international system set up after the end of the First World War.
  • In 1943, China, the USSR, the United Kingdom and the United States issued a joint declaration recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.
  • Subsequently, G.H. Hackworth (United States) committee was entrusted with preparing a draft Statute for the future international court of justice in 1945.
  • The San Francisco Conference while keeping committee recommendations in mind decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat.
  • The PCIJ met for the last time in October 1945 and resolved to transfer its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat at the Peace Palace.
  • In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge JosĂŠ Gustavo Guerrero (El Salvador), the last President of the PCIJ.

Structure

  • The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately.
  • In order to be elected, a candidate must receive an absolute majority of the votes in both bodies.
  • In order to ensure a measure of continuity, one third of the Court is elected every three years and Judges are eligible for re-election.
  • ICJ is assisted by a Registry, its administrative organ. Its official languages are English and French.
  • The 15 judges of the Court are distributed in following regions:
    • Three from Africa.
    • Two from Latin America and Caribbean.
    • Three from Asia.
    • Five from Western Europe and other states.
    • Two from Eastern Europe.
  • Unlike other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.
  • In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. This has in fact never happened.

Jurisdiction and Functioning

The International Court of Justice (ICJ) serves as a global tribunal with dual jurisdiction over legal disputes between States brought before it by those States (so-called contentious cases) and requests for advisory opinions on legal matters referred to it by United Nations bodies and specialised agencies (advisory proceedings). Only nations that are parties to the Court’s Statute or that have agreed to its jurisdiction under specific restrictions are states that are also members of the United Nations. States do not have accredited permanent representation to the Court. Their ambassador accredited to the Netherlands or their minister of foreign affairs usually serves as their conduit for communication with the Registrar. They are represented by an agent when they are parties to a case before the Court. The agent also functions as the head of a special diplomatic mission with the authority to commit a sovereign State because international relations are at stake. The decision is final, enforceable against the parties, and not subject to review (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision). A Member State of the United Nations commits, by signing the Charter, to abide by the Court’s ruling in any case to which it is a party.

The Security Council has the authority to suggest or decide on the steps that should be taken to give effect to a court ruling if a State believes that the other party has failed to fulfil its duties under the terms of the verdict. The process outlined above is the customary method. Incidental proceedings, however, may alter the course of the proceedings. In addition to carrying out its functions as a full court, the ICJ may also create ad hoc chambers to focus on particular matters if the parties so request.

ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the material resources made available to the Court. It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings. It differs from the Courts which deal with allegations of violations of the human rights conventions under which they were set up, as well as applications from States at which courts can entertain applications from individuals, that is not possible for the International Court of Justice.

The jurisdiction of the International Court of Justice is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS). The Court is not a Supreme Court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards. The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses. The ICJ only has jurisdiction based on consent, not compulsory jurisdiction. It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

Power and Function:

The International Court of Justice is composed of 15 judges, elected for the term of 9 years by United Nations General Assembly and the Security Council. The process is assisted by a registry and its administrative organ. The official Language of ICJ are English and French.

1. ICJ settles the legal disputes submitted by States, in accordance with International Law.

2.ICJ advises on the legal questions referred to it by authorized UN organs and other specialized agencies

Advisory Opinions

The advisory procedure of the Court is open solely to international organizations. The only bodies at present authorized to request advisory opinions of the Court are five organs of the United Nations and 16 agencies of the UN family. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity of presenting written or oral statements. The Court’s advisory procedure is otherwise modelled on the contentious proceedings, and the sources of applicable law are the same. In principle, the Court’s advisory opinions are consultative in character and are therefore not binding as such on the requesting bodies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be binding.

Since 1946, the Court has given 27 Advisory Opinions, concerning, inter alia, the legal consequences of the construction of a wall in the occupied Palestinian territory, admission to United Nations membership, reparation for injuries suffered in the service of the United Nations, the territorial status of South‑West Africa (Namibia) and Western Sahara, judgments rendered by international administrative tribunals, expenses of certain United Nations operations, applicability of the United Nations Headquarters Agreement, the status of human rights rapporteurs, and the legality of the threat or use of nuclear weapons.

Conclusion:

The International Court of Justice (ICJ) is composed of 15 judges who serve 9-year terms after being elected by the United Nations General Assembly and the United Nations Security Council. The judges of the ICJ are assisted by the ICJ Registry, the administrative arm of the ICJ. In addition, the ICJ Statute allows a State party to a case before it which does not have a judge of its nationality on the bench to appoint a person to sit as judge ad hoc in that specific case. Article 2 of the ICJ Statute dictates that the Court shall be composed of “persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris consults of recognized competence in international law.”

International Court of Justice plays a superior role to dissolve the dispute arising between the states and helps to maintain peace and harmony around the world. Though the seat of the court is at The Hague, Netherland, but the sessions can be held wherever the court considers to do so.

The Court applies the international Law which is specifically summarized in Article 38 of the International Court of Justice Statute. The court also applies the international custom, international convention and the principle of justice and equity.

The International Court of Justice has also the power to make its own rules and regulation for smooth working. The procedure which are to be followed by the court are set out in the Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).

Refugee

The definition of a refugee is a person who has left their country due to a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of their nationality, and is unable or unwilling to use their rights due to this fear.

For the first time, refugees outlined what a refuge is as well as the type of legal protection, other aid, and social and economic rights he or she should receive from nations that have ratified the Convention. A well-founded fear of persecution that endangers one’s life or freedom because to one’s race, religion, nationality, membership in a particular social group, or political beliefs, in short, is one of the five criteria for receiving refugee status. It also specified a refugee’s duties toward host governments and specific groups of people, such as war criminals, who are not eligible for refugee status. It outlined a set of fundamental human rights that ought to at least be on par with the liberties enjoyed by foreign nationals residing legally in a particular nation and, in many situations, those of its citizens. In order to meet the problem, it acknowledged the global reach of refugee crises and the need for international cooperation.

Who protects refugees?


The protection of refugees falls primarily under the purview of host governments, and parties to the Convention and/or the Protocol are required to abide by their terms. The UNHCR is in charge of ensuring that the convention’s provisions are carried out in the nations that have ratified it and that legitimate refugees are given protection rather than being forcibly deported to areas where their lives may be in danger.

Refugee Rights:


Refugees have certain rights under the 1951 Convention and 1967 Protocol. However, even in countries that have legislation on refugees in those countries, or guaranteed in the Constitution of that country. In brief, the rights of refugees include:
i. The right not to be returned to a county where they are likely to face persecution (the principle of nonrefoulement)
ii. The right not to be expelled, except under certain strictly defined conditions
iii. Exemption from penalties for illegal entry into the territory of a contracting state
iv. Freedom of religion and free access to courts
v. Freedom of movement
vi. The right to identity papers and travel documents.vii. The right to public education.

Cessation of Refugee Status


There are circumstances when a person, recognized as a refugee may no longer qualify to be classified as such. The 1951 Convention stipulates that a person ceases to be a refugee if:
i. He or she has voluntarily re-availed himself or herself of the protection of the country of his or her nationality
ii. Having lost his or her nationality, he or she has voluntarily re-acquired it
iii. He or she has acquired a new nationality
iv. He or she has voluntarily re-established himself or herself in the country in which he or she left
v. The circumstances in connection with which he or she has been recognized as a refugee have ceased to exist, and he or she can no longer continue to refuse the protection of the country of his or her nationality
vi. He or she is without nationality, but because of circumstances in connection with which he or she has been recognized as a refugee has ceased to exist, is now able to return to his or her country of former habitual residence.

Exclusion:

when a person is not eligible to receive refugee status By removing individuals from its covering who do not merit to be recognised and protected as refugees, the exclusion clause of the 1951 Convention aims to maintain the integrity of refugee protection. It gives countries the assurance that even if someone has a legitimate fear of persecution, their claim to refugee status will not be granted. Prior to being accepted into the country of refuge as refugees, anyone who had committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside of that country is subject to the exclusion clause. This also goes for anyone who had committed acts that were against the goals and tenets of the UN.


Apart from UNHCR, other UN organisations are also covered by the exclusion clause if a person is currently receiving protection or aid from them. As an example, consider the various Palestinian groups that the United Nations Relief and Works Agency for Palestine Refugees in the Near East assists (UNRWA). Last but not least, the exclusion clause pertains to individuals who, barring formal citizenship, are not regarded as needing international protection because they are living in a nation in which they have been granted the majority of the rights typically enjoyed by nationals.

Al-Kateb v Godwin (Al Kateb) (2004) 219 CLR 562

The appellant, Al Kateb, was a stateless Palestinian. He arrived in Australia without a visa and was placed in immigration detention. His application for a protection visa was refused. However, there was also no prospect of removal from Australia in the reasonably foreseeable future.

Section 198 of the Migration Act 1958 (Cth) provided that an officer must remove ‘as soon as reasonably practicable’ an unlawful non-citizen who asks to be removed, or whose visa application has been unsuccessful and who has not made another application.

The majority – McHugh, Callinan, Hayne, and Heydon JJ – found that the relevant statutory provisions were unambiguous and required an unlawful non-citizen to be kept in detention notwithstanding the prospects of removal.

The minority – Gleeson CJ and Kirby J – found that the statute did not expressly provide for indefinite detention, and so it should be interpreted so as to preserve fundamental freedoms such as the common law rights to liberty and security of the person.

Consumer Protection Act 2019

The Consumer Protection Act, 2019 (the Act) received the President’s assent on 9 August 2019 which has replaced the Consumer Protection Act, of 1986.

Who Is Consumer?

Buys any item, employs any service, uses a product with the buyer’s consent. A consumer is someone like the individual described above. It should be emphasised that neither the size of the item nor the price at which it was purchased are important. Therefore, a consumer case may be brought over the purchase of both a pen and a penthouse, as well as any offline or online transactions made using electronic devices, direct marketing, multi-level marketing, or teleshopping.

Not a Consumer?

The individual who receives goods or services without payment. Purchase items or services with the intent to resell them (Means of Commercial purpose). However, a person who purchases and uses goods solely to support himself through self-employment is referred to as a CONSUMER. A person is considered a “consumer” under the new Act if they “purchase any goods” and “hire or avail of any service” in exchange for money, but they are not considered consumers if they acquire things for resale or any other business purpose.

The Act seeks to widen the scope of this definition, Thus, a consumer will now mean any person who “buys any goods” and “hires any services” which shall include both online and offline transactions through electronic mode.. teleshopping, direct selling, or multi-level marketing.

salient features of the Consumer Protection Act

● Coverage of items: This act is applicable to all products and services.

● Coverage of sector: This act is applicable to all areas whether private, public, or cooperative

● Compensatory nature of provisions as it compensates the consumer for the losses.

● Group of consumer’s rights.

OBJECTIVES OF NEW STATUTE

Ease the overall process of the consumer grievance redressal system.
A better mechanism to dispose of consumer complaints in a speedy manner.
Help in the disposal of a large number of pending cases in consumer courts across the nation.

Effective safeguards

● It is applicable to all types of goods and services unless specifically exempted by the Central Government.

● The ambit of the Act covers all the sectors like public, private or cooperative societies, etc.

● It is compensatory in nature.

● A three-tier system of redressal forums has been created like District Forum, State Commission, and the National Commission

● E-Filing of Complaints

  • To shape Consumers- Indian customers are not well-organised, and vendors exploit them easily.
  • Impart Market Information- Most of the consumer is clueless, and have no information about the product they are buying and this might cause them losses.
  • Physical Safety- Some products are adulterated and can hamper consumer health. So, they need to be protected.
  • Avert Monopoly- Irrespective of different restriction many organization follows monopoly practice and consumers gets influenced and should be protected.
  • Malpractices- Company pursues biased trade practices, and unlawful trade practices and this protection plays a crucial role.
  • Misleading advertisement- Many enterprises, intentionally trick consumers through incorrect or deceptive advertisements. This act will shield consumers from getting exploited.
  • Education Consumers about their Basic Rights- Most consumers ignore or do not know about their rights. The Consumer Protect Act educates them and secures their rights and interests.

How to file a complaint

  1. Within two years of purchasing the product or services, the complaint should be filed.
  2. In the complaint, the consumer should mention the details of the problem. This can be an exchange or replacement of the product, compensation for mental or physical torture. However, the declaration needs to be reasonable.
  3. All the relevant receipts, bills should be kept and attached to the complaint letter.
  4. A written complaint should be then sent to the consumer forum via email, registered post, fax, or hand-delivered. Acknowledgement is important and should not be forgotten to receive.
  5. The complaint can be in any preferred language.
  6. The hiring of a lawyer is not required.
  7. All the documents sent and received should be kept.

Unfair Trade Practices

The New Act contains a clear, inclusive definition of unfair trade practises that, unless otherwise permitted by other laws, also covers sharing of personally identifiable information provided by customers in trust. introducing mediation as a means of resolving consumer complaints. The New Act makes mediation available as an ADR option, streamlining and expediting the dispute resolution process. This will facilitate quicker dispute resolution and ease the burden on consumer commissioners. Liability for Products Chapter VI of the New Act, which addresses product liability, is now available. These stringent liability-based clauses will make it possible for the complainant to seek compensation for damages brought on by subpar goods or services.

Importance of Consumer Protection:

Consumer Point of View:

  • To shape Consumers- Indian customers are not well-organised, and vendors exploit them easily.
  • Impart Market Information- Most of the consumer is clueless, and have no information about the product they are buying and this might cause them losses.
  • Physical Safety- Some products are adulterated and can hamper consumer health. So, they need to be protected.
  • Avert Monopoly- Irrespective of different restriction many organization follows monopoly practice and consumers gets influenced and should be protected.
  • Malpractices- Company pursues biased trade practices, and unlawful trade practices and this protection plays a crucial role.
  • Misleading advertisement- Many enterprises, intentionally trick consumers through incorrect or deceptive advertisements. This act will shield consumers from getting exploited.
  • Education Consumers about their Basic Rights- Most consumers ignore or do not know about their rights. The Consumer Protect Act educates them and secures their rights and interests.

CONSUMER RIGHTS

Consumer rights is an insight into what rights consumer holds when it comes to the seller who provides the goods:


Right to Safety:It refers to the right to protection from the marketing of products and services that pose a risk to property or human life. Customers should demand before making a purchase on the products’ quality as well as its guarantee..


Right to be Informed: It refers to the right to information regarding the calibre, amount, potency, purity, standard, and cost of products in order to safeguard the customer against deceptive business practises..

Right to Choose: It refers to the right to be, wherever possible, ensured of access to a variety of goods and services at a reasonable cost. In a competitive market when a range of items are offered at competitive prices, this right can be better exercised.

Right to be Heard: It means that consumers’ interests will receive due consideration at appropriate forums. It also includes the right to be represented in various forums formed to consider the consumer’s welfare.


Right to Seek Redressal: It means the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers. It also includes the right to fair settlement of the genuine grievances of the consumer.

Right to Consumer Education: It means the right to acquire the knowledge and skill to be an informed consumer throughout life. Ignorance of consumers, particularly of rural consumers, is mainly responsible for their exploitation.

Responsibilities of a consumer

Customer protection should be actively pursued by a responsible consumer. Consumer International, a global federation of consumer groups, has listed the following consumer obligations:

  1. Critical awareness
  • Should be vigilant and inquisitive about the products and services used.
  • Not to be swayed by deceptive and misleading commercials that make exaggerated claims about items and services, but to critically assess the utility of the product or service, as well as the assurances and warranties that come with it.
  • Examining items and making a service offer.
  • Wherever such a choice is available, exercising choice based on an assessment of relative merits of products and services.
  • Adopting a no-compromise approach when it comes to the quality of goods and services to ensure that the money spent is well spent.
  1. Being prepared to act

One must be prepared to take action to enforce fair and just demands if they are to be enforced in order to raise one’s voice in protest against any form of consumer exploitation by trade and industry or any violation of their right to fair and just demands regarding the calibre of goods and services.

  1. Social responsibility 

should be aware of how their consumption affects others, especially underprivileged groups, locally, nationally, and globally.

  1. Environmental awareness 

To be aware of environmental degradation and contamination in order to avoid waste and maintain natural resource conservation.

  1. Solidarity 

being ready to band together and work together to advance consumer movement and consumer protection measures through internet collaboration, campaigning, and advocacy programmes on a range of consumer concerns.

Responsibility to be aware

Before purchasing goods and services, consumers have a duty to research their safety and quality. Every consumer has a duty to obtain and hold onto the proof of purchase and other paperwork associated with the purchase of durable goods. For instance, obtaining a cash memo for a purchase of goods is important since the proof of purchase will help you to support your demand for the products’ repair or replacement if you need to file a complaint about product flaws. The warranty/guaranteed cards that retailers provide for long-lasting consumer goods like televisions and refrigerators should also be carefully stored for future use. The cards also give you access to free servicing for repairs and part replacements for a predetermined time after purchase.

Responsibility to think independently

Consumers should be concerned with what they want and need and should be able to make decisions on their own as a result. For knowledge and decision-making, it is typically ideal for a customer to rely as little as possible on the vendor. As a consumer, it is your duty to prevent yourself against being duped by exercising caution. A knowledgeable customer is always better able to protect their own interests than anyone else. Furthermore, it is always better to be prepared than it is to wait until something bad has happened before seeking therapy.

Responsibility to speak up

It’s important for buyers to be open about their issues and make clear what they want from sellers. One of your core legal rights is to speak up and defend yourself if you think a business, group, or seller has wronged you. This is ethical decision-making meant to safeguard other clients from the misbehavior of the same business. If you feel that you have been treated unfairly, you can usually contact a complaint department at a company.

Responsibility to complain

It is the duty of the customer to express and file a serious and reasonable complaint about their dissatisfaction with products or services. Consumers are also reminded to keep in mind that they shouldn’t make claims that are unreasonably huge when they file complaints and ask for reimbursement for loss or harm. Consumers are regularly compelled to exercise their legal right to legal recourse. Consumers have occasionally asked for big quantities of money for no apparent reason. This is regarded as being careless behaviour that ought to be avoided.

Responsibility to be an ethical consumer

Consumers should act honestly and refrain from using any deceptive tactics. Some customers misuse the product, especially when it is still under warranty, because they think they will be able to get it fixed at that time. They are not treated fairly in this predicament. They should constantly use the products properly.

In addition to the duties mentioned above, customers also have a few more obligations. They are required to abide by the conditions of the contracts made with producers, traders, and service providers. They should pay on promptly for items made with credit. They must not tamper with equipment used for services, such as water and electricity meters, bus and train seats, etc. They should remember that only if they are prepared to take responsibility can they exercise their rights.

conclusion

The Indian government passed the Consumer Protection Act, 2019 to address issues connected to consumer rights violations, unfair business practises, deceptive advertising, and other situations that are detrimental to consumers’ rights. The Consumer Protection Act, 2019, is a revised piece of legislation that grants customers a wide range of advantages and rights to safeguard them against unfair business practises, false or misleading advertising, etc. The Act gives customers the option to use mediation and other alternative dispute resolution processes so that the parties can choose a quick and efficient resolution of their issues. The Act’s inclusion of e-complaints and e-consumers shows that certain members of the legislature were forward-thinking. Additionally, the Act added new concepts like “product responsibility” and “unfair contracts,” broadening the extent of protection for consumers’ rights and enabling them to complain when those rights have been infringed.

Extradition

The term extradition has derived from two Latin words ex and traditum. Ordinarily it may mean ‘delivery of criminals’, ‘surrender of Fugitive’, or ‘handover of fugitives.

Definition:-“The delivery of a person; suspected or convicted of a crime, by the state where he has taken refuge or taken asylum, to the state that asserts jurisdiction over him.”

L.Oppenheim: “ Extradition” is the delivery of an accused or a convicted individual in the state on whose territory he is alleged to have committed, to have been convicted of a crime.

According to Starke, “the term extradition’ denotes the process whereby under treaty or upon a basis of reciprocity, one state surrenders to another state at this request a person accused or convicted of a criminal offense committed against the law soft here questing state, such as requesting the state is competent to try the alleged offender.”

Generally, each state has complete jurisdiction over all subjects within its territory. However, in some cases the state cannot punish the guilty party. This is because such criminals fled to other countries after committing crimes. Therefore, without cooperation between nation-states in the extradition of criminals to the countries concerned, a just outcome with a true spirit cannot be achieved. Because of this fact, nation-states have adopted extradition laws. That is, the nation-state hands over criminals in judicial administration to the relevant states.

PURPOSE

The purpose of extradition is to prevent crime and punish criminals who have escaped punishment and started living in another country. As we know, it would be easier for a country to punish a criminal for committing a crime, and it would be easier to collect evidence against him for that particular crime. Jurisdiction can be punished and can be returned to the home country through extradition procedures. The purpose of the extradition procedure is therefore to prevent and curb crime on the international stage.

Therefore, the role of extradition is to prevent crime and punish criminals, because it is in the interest of all nations to punish criminals and prevent crime. It will ensure the extradition of such persons, which also depends on the principle of bilateral treaties and reciprocity, but in the absence of a treaty or agreement, the state will transfer the fugitive or You can demand the extradition of the offender It is in the interests of the country’s security and law and order to extradite the accused where he is staying.

A criminal is extradited to the requesting state for the following reasons

1. Suppression of crime- extradition is a process towards the suppression of crime. Normally a person cannot be punished or prosecuted in a state where he has fled away because of lack of jurisdiction or because of some technical rules of criminal law. Criminals are therefore extradited so that their crimes may not go unpunished

2. Deterrent effect- extradition acts as a warning to the criminals that they can’t escape punishment by fleeing to another state. Extradition, therefore, has a deterrent effect.

3. Safeguarding the interests of the Territorial state- Criminals are surrendered as it safeguards the interest of the territorial state. If a particular state adopts a policy of non-extradition of criminals they would like to flee to that state only. The state therefore would become a place for international criminals, which dangerous for it, which indeed would be dangerous for it because they may again commit a crime there if they would leave Free.

4. Reciprocity – extradition is based on reciprocity. A state which is requested to surrender the criminal today may have to request for extradition of a criminal on some future date.

5. International co-operation- extradition is done because it is a step towards the achievement of international co-operation in solving international problems of a social character. Thus it fulfills one of the purposes of the UN as provided under para 3 of article 1 of the charter.

6. Evidence- the state on whose territory the crime has been committed is in a better position to try the offender because the evidence is more freely available in that state only

Principles of Extradition :

➢ Double Criminality

➢ Extraditable Offense

➢ Double Jeopardy

➢ Rule of Specialty

➢ Rule of Reciprocity

➢ Nationality

➢ Refugee, Human Rights and Non Discrimination

➢ Political or Military Character

➢ Conviction based on Trial in Absentia.

Double criminality :

Double illegal activity refers back to the characterization of the relator’s crook behavior in up to now because it constitutes an offence beneathneath the legal guidelines of the 2 respective states. The preferred rule is that the offence in appreciate of which extradition is asked ought to be an extraditable offence now no longer best beneathneath the regulation of the asking for kingdom however additionally beneathneath the regulation of the asked kingdom. Hence, if any act is taken into consideration a criminal offense is the kingdom asking for extradition each if it isn’t a criminal offense withinside the united states of safe haven extradition isn’t granted. Example, in Eisler case 1939 the fugitive Eisler became convicted for being member of CPUSA hut controlled to escape and attain UK. He became arrested and produced For path on the English magistrate, held to be launched at the floor that the offence for which he became convicted in USA became now no longer diagnosed as a criminal offense in UK.

Extraditable offence:

The first actual requirement for a a success extradition is that the offence dedicated need to be an extraditable offence. Extradition is a process suitable best for the More extreme offences and as a result the countrywide extradition regulation of maximum States limits the quantity of extraditable offences both to sure unique offences or to offences issue to a specific stage of punishment

Double Jeopardy :

The maximum fundamental information of double jeopardy is that it refers to prosecuting someone greater than as soon as for thesame offense. Once you’re acquitted or convicted of a selected example of violating the regulation however, you cannotbe prosecuted (or punished again, if convicted) on that identical rate with the aid of using the identical authorities for that identical example ofviolating that regulation. A wonderful instance is Guy Paul Morin, who changed into wrongfully convicted in his 2d trial after the acquittal in his first trial changed into vacated with the aid of using the Supreme Court of Canada.

Rule of Speciality :

This doctrine is premised on the idea that every time a country makes use of its formal techniques to give up someone to any other country for a particular charge, the asking for country shall perform its supposed cause of prosecuting or punishing the wrongdoer handiest for the offence for which the asked country conceded extradition. The doctrine of area of expertise advanced to shield the asked usa From abuse of its discretionary act of extradition. A fugitive crook cannot be attempted for against the law aside from the crime for which he become extradited, however, if he escapes and in rearrested, he may be attempted to different offences too (US as opposed to Rouscher, wherein americaA very best courtroom docket held that the individual extradited should handiest be attempted for the crime extradited for now no longer for any other, the opposite main case is R as opposed to Corrigan, 1931).

Rule of Reciprocity :

Reciprocity is one of the prison foundation for extradition withinside the absence of a treaty that is part of global ideas of pleasant cooperation among nations. Reciprocity, as a considerable requirement of extradition (whether or not primarily based totally on a treaty or not) arises with appreciate to numerous particular elements of the process.

Extradition of nationals :

In principle, any individual, whether or not he’s a countrywide of the soliciting for State, or of the asked State, or of a 3rd State, can be extradited. Many States, however, by no means extradite certainly considered one among their nationals to a overseas State Does it imply the perpetrator is going unpunished? The solution is negative. In one of these case the asked birthday birthday celebration has to provoke crook prosecution in opposition to one of these man or woman for the equal offence in keeping with its laws.

Political or Military Character :

A common desire of all nations to ensure that serious crimes go unpunished. The state of the territory in which the offender has taken refuge cannot simply prosecute or punish the offender due to technical miles of criminal law or lack of jurisdiction. Therefore, in order to close the net of fugitive criminals, international law applies the maxim “aut punier aut didere” (the offender must be punished by the country of refuge or handed over to a country that can punish him). (or surrender). Therefore, the need for extradition arises for the following reasons. Criminals should be punished where they commit crimes

Importance of Extradition :

A common desire of all nations to ensure that serious crimes go unpunished. The state of the territory in which the offender has taken refuge cannot simply prosecute or punish the offender due to technical miles of criminal law or lack of jurisdiction. Therefore, in order to close the net of fugitive criminals, international law applies the maxim “aut punier aut didere” (the offender must be punished by the country of refuge or handed over to a country that can punish him). (or surrender). Therefore, the need for extradition arises for the following reasons. Criminals should be punished where they commit crimes

Daya Singh Lahoria vs. Union of India [(2001) 4 SCC 516], it was stated that a fugitive criminal brought in India under an extradition treaty can only be tried for the offense provided in the extradition decree and not for any other offense. The Criminal courts in India can not try such fugitives under any offense other than the one allowed for trial.

Vijaya Vittal Mallaya is an Indian businessman and politician who is the subject of Extradition. Indian government try to force his return from the United Kingdom to India to face the charges of financial crimes. As a treaty was signed between U.K and India in 1992 so India has made several extradition requests and only one has succeeded.

Conclusion

From the above discussion, we can conclude that there are many restrictions on handover. And attempts should be made to overcome such limitations. Because it is inevitable to punish the crimes committed in the administration. Extradition is now an important tool for ensuring law and justice. But the irregularities in its application among nations pose a threat to the principle of justice. However, it is essential to ensure a balance between extradition law and individual rights. Given the existing nature of human and individual rights, it is understandable that this area is still a work in progress, as the customary nature of this law makes balancing acts very difficult. In essence, this means that extradition must at least be consistent with respect for the individual’s fundamental human rights. In fact, any country must comply with extradition requests unless the refugee has compelling reasons to prevent extradition. It is no exaggeration to say that the existing international framework has certainly increased the effectiveness of law enforcement. However, as a caveat, ensuring the safety of individuals from the interests of the other country must be ensured to ensure that extradition is respectful and viable.

ASYLUM

Meaning

Asylum is a Latin word and it derives its origin from the 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. There is no specific definition of Asylum but it can be understood as legal protection granted to people who have fled their home countries due to warship, conflict, persecution, or fear of persecution. It is a possibility to remain in a country either permanently or for a temporary period.  A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.

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 the asylum the person seeks the protection from a nation after reaching there and hence is known as an asylee or asylum seeker.

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 (1), provides that “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

History

U.S. asylum rights stem from international treaties signed after World War II to protect those who fear or flee persecution. The first agreement, the 1951 Convention Relating to the Status of Refugees, was negotiated by the United Nations in response to the mass immigration following World War II. The United Nations has attempted to establish an internationally negotiated definition of who is admitted as a refugee. Nevertheless, the 1951 Convention only applied to those who had become refugees as a result of events prior to 1 January 1951. The United Nations adopted the refugee concept as set out in the 1951 Convention, but expanded it to include potential refugees in 1967. Protocol on the Status of Refugees. In 1968, the United States acceded to her 1967 Protocol.

Kinds of Asylum

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 allowed on the territory of the country granting asylum. Every sovereign state has the right to control and maintain jurisdiction over its territory, so the decision to extradite or grant asylum to someone is left entirely to its discretion. The state therefore has territorial sovereignty over all its subjects and foreigners. This form of asylum is primarily granted to those accused of political crimes such as inciting hatred, treason, and espionage in their own country. Territorial asylum is based primarily on the domestic laws of the sovereign.

Some examples of territorial Asylum –

1) Idi Amin has been given by Saudi Arabia.

2) Baby Dok has been given asylum by France.

3) Dawood Ibrahim mafia Don is given asylum by Dubai Government.

4) Dalai Lama and his followers were granted asylum by the government of India.

(2) Extra-territorial Asylum:

This form of asylum is usually granted by a country outside its territory, usually in a place that is not part of its physical territory. In such cases, states granting asylum to foreign countries with embassies are called diplomatic asylum. Asylum is also granted to asylum seekers on board warships. They are exempt from foreign jurisdictions operating in that area. Such warships are under the auspices of flag states. This does not apply to merchant ships. Because merchant ships are not exempt from the provisions of international law. Extraterritorial asylum is therefore based on the framework of international legal agreements.

1. Diplomatic Asylum / Asylum in Legation: 

Because the granting of extraterritorial or diplomatic asylum involves the deprivation of national sovereignty, international law generally does not recognize the right to seek asylum in legation facilities. However, asylum may be granted at the legation in the following exceptional cases:

1) Individuals who are physically in danger from violence.

2)  Where there is well-established and binding local custom.

3) When there is a special treaty between the territorial State and the state of Legation concern.
Asylum in consular premises –

2. Asylum on the premises of an international institution –

                          Though International Law does not recognize any rule regarding the grant of asylum in the premises of an International institution, however, temporary Asylum may be granted in case of danger of imminent violation.

3. Asylum in Warship – 

                           There are conflicting views on to grant of asylum in warships, but it is argued that Asylum may be granted to political offenders.

As far as an exile warship is concerned, it may be granted on humanitarian grounds if it is of extreme danger to those seeking it. The right of asylum to warships in the case of legations is therefore recognized in the same way and subject to the same conditions.

4. Asylum in Merchant Vessels – 

Merchant ships are not exempt from local jurisdiction and therefore do not have the power to grant asylum to local criminals. Therefore, if a person who has committed a crime on land seeks asylum aboard a foreign merchant vessel, he or she may be sued by the local police before the vessel leaves a port or when entering another port in the same state. I have. Therefore, the rule applies that no asylum is granted to merchant ships. However, states can grant asylum if they enter into corresponding agreements.

5. Asylum on the premises of international Institutions:

Whether someone taking shelter withinside the premises of an global organization or enterprise could be granted asylum is a query that can not accept with actuality withinside the absence of any rule on this regard and additionally due to loss of practice. However, a proper to furnish transient shelter in an excessive case of risk from a mob can not be dominated out.

                    Thus, in Extra-territorial or diplomatic Asylum, Asylum can be granted in exceptional cases and it is necessary to establish a legal basis in each particular case.

Categories Of The Asylum Seekers

There are essentially 3 classes of asylum seekers, namely, territorial, extraterritorial, and neutral. Territorial asylum is wherein asylum is granted inside the territorial bounds of the country who’s supplying the asylum and is an exception to the exercise of extradition.  It is granted basically for the person that is accused of political offenses, like treason and desertion. Extraterritorial asylum is granted to someone outdoor the territory of the country. It generally describes the ones instances wherein a State refuses to give up someone disturbing who isn’t always upon its very own bodily territory however is upon one in all its public ships mendacity in overseas territorial borders or upon its diplomatic premises inside overseas territories.

Benefits of asylum

Leaving home and moving to another country unsure about their future attitudes is the biggest challenge people can face in life. Protect those who have had to leave their home country. Offer freedom from torture and degrading treatment. They are permeated with the right to freedom of speech and opinion.

In general, saving the lives of people who are outside the jurisdiction of local governments is feared that a fair trial will not be held, or that physical, mental, and economic persecution can be expected if they stay there too long. accepted in some cases.

Humanity shall always prevail, a quote that every country tries to abide by. The benefit of asylum is that it protects the individual from being forced to return to their home country. Their families stay protected at a place where they no longer have to worry about their lives.

You can work and earn despite some restrictions that may be imposed by your host country. Once an asylum seeker is granted the title of refugee, they are given the same rights as are given to citizens of that country, with exceptions such as political rights and respect. Some obtain citizenship of the country in which they were granted asylum. In some cases, people choose the resettlement option for good reasons.

Role of Nationality in the Asylum

The 1951 Geneva Convention on Refugees stipulates that no one shall be discriminated against on the basis of race, religion or national origin. However, a variety of factors are considered when a country decides whether to grant asylum. After submitting the application, the applicant will be interviewed to gather all the information regarding their background, reasons for applying for asylum, etc. States often consider a person’s nationality and background to determine whether a person is in fact in need.

For example, when someone from Syria or South Sudan says they fear persecution or imminent mortal danger due to ongoing unrest in Middle Eastern countries, this indicates the seriousness of their reasons for leaving their home country. It is not a sign of arbitrary discrimination rather it is seen whether the people of a particular nationality or belonging to a linguistic group are facing persecution.

CASE LAWS:

In the case of Colombia vs. Peru-the political leader of the Peru was accused of the crime of instigating a military rebellion. He was granted asylum at limo by the Colombian embassy and was not allowed to leave the country. The matter between Peru and Colombia was then taken to the international court of justice on the question of the right to diplomatic asylum. The court held that diplomatic asylum is suppression of territorial sovereignty and should not be recognized unless the legal basis is established. The state granting the diplomatic asylum must prove its right to grant the diplomatic asylum and the other territorial state should respect it.

Assange v. The Swedish Prosecution Authority

The recent case that has captured a lot of media attention is Julian Assange. He is an Australian editor, publisher, and founder of WikiLeaks who was accused of a rape case and a molestation case by the Sweden government. The Sweden government had filed for the extradition of Assange and the UK Supreme Court ordered his extradition to Sweden in May 2012. In June 2012, he was granted asylum in England at the Embassy of Ecuador. 

The reason was given that his human rights would be violated if he is sent to Sweden. In 2015 Sweden dropped the charges against Assange. In February 2012, the UN declared that he had been ‘arbitrarily detained by the Ecuador embassy. In May 2019 he was sentenced to 50 weeks in jail for breaching bail conditions.  He has also been accused of committing a crime against the United States of America by releasing confidential documents of the United States of America on his website named ‘WikiLeaks’. The USA has been trying to extradite him to their country.

Conclusion

Asylum is a very important part of international law. The turmoil in the Middle East, escalating wars between nations, and her CAA-NRC controversy in India make it more necessary than ever to be prudent and foresight to ensure the proper implementation of the right to asylum. increase. The concept of diplomatic asylum needs to be clarified. Various countries, including India, are required to have clear asylum laws in their own countries. The principle that all nations must adhere to is the principle of humanity.