A Legal History of Human Rights and Asylum
| Author | Joseph Rikhof |
| Pages | 41-122 |
41
A Legal History of
Human Rights and Asylum
A. EARLY PRACTICE AND WRITINGS
The custom of giving asylum was well known in antiquity, in the Middle
East, Greece, and several other countries, and it could be granted on
a religious or secular basis. Religious asylum or sanctuary was sought
internally at holy places against powers within the same territory as the
place of asylum and was allowed because of the respect of the seeker for
a particular deity or church. The secular version, external asylum, was
given by kingdoms, republics, and free cities to protect persons from
outside their territory from persecution. Territorial asylum can also be
seen as part of a larger immigration movement since time immemorial,
where aliens with well-established skills and talents were welcomed
by political entities. Such aliens were given limited rights, partially in
recognition of the fact that the subjects of these same entities required
protection when engaged in trade and commerce elsewhere.
These practices became the subject of debate by writers from the
fifteenth century on, such as Franciscus de Vitoria, Franciscus Suarez,
Hugo Grotius, Samuel von Pufendorf, Christian Wol, and Emerich
-
mermann, ed, The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
Commentary
The Status of Refugee in International Law, vol 2
The Rights of Refugees Under International Law, 2d ed (Cambridge: Cam-
42 | Exclusion and Refoulement: Criminality in International and Domestic Refugee Law
de Vattel. The writings of Grotius, Pufendorf, and Vattel are espe-
cially useful in understanding the various approaches taken to the
issues of asylum and refuge in the legal and philosophical literature
over these years.
Grotius, who had been a refugee himself and was therefore sym-
pathetic to the plight of asylum seekers, was of the view that “victims
of unmerited persecution,” or suppliants, had a right to asylum and
favourable treatment under certain conditions, including submission
to established law and order and any regulations that were necessary
to avoid strife. Furthermore, he argued that refugees had no right to
demand a share in the government. The inviolable nature of asylum was,
however, not designed for those who had committed crimes injurious
to humankind and destructive to society.
Pufendorf, on the other hand, was of the view that each state is first
and foremost an agent of its own interests. The grant of asylum to non-
criminal strangers driven from their homes might well be a commend-
able “act of humanity” but not something the state should be obliged to
do. As well, he felt that refugees should keep quiet and be content with
what they had received in the state of reception. Consequently, while
Grotius advocated that states should follow common principles of law
in their reception of refugees, Pufendorf reduced the notion of asylum
to an issue of governmental discretion where the balance of self-interest
and reasonableness had to be struck exclusively by the state itself.
Vattel recognized the natural rights of a banished or an exiled per-
son to live elsewhere. He was of the view that there was neither an abso-
lute right for the individual to seek asylum nor a complete discretion
for the receiving state to refuse such a person when they were forced to
flee their country. Vattel concluded that a person has a conditional right
to seek asylum and that only if a state had justifiable reasons could it
reject a claim for asylum. In addition, he made an exception to the right
of asylum for those criminals who, by the character and frequency of
The Law of War and Peace in Three Books
Gurung v Secretary of State
for the Home Department
6 Samuel von Pufendorf, On the Law of Nature and Nations, Eight Books (1672), translated by
A Legal History of Human Rights and Asylum | 43
their crimes, are a menace to public security everywhere and proclaim
themselves enemies of the whole human race. He considered poisoners,
assassins, incendiaries, and pirates to fall within this category.
In canvassing these doctrines, it becomes clear that writers such as
Grotius and Vattel, who are most disposed toward a state obligation to
grant asylum in deserving cases, do not consider such a right absolute,
requiring refugees to obey the laws of the country of refuge and being
of the view that serious criminals should not be given such a right.
State practice continued to evolve throughout the period of these
writings and quite possibly because of them. It was said that the modern
era of asylum began in when Louis XIV of France signed a law
repealing the earlier Edict of Nantes, which had resulted in the perse-
cution of Huguenots in France. This example of allowing Huguenots
to establish themselves was followed by almost a dozen non-Catholic
countries by . This granting of asylum to religious minorities
was expanded upon after the French Revolution, when, as a result of
the persecution of both aristocrats and others opposed to the various
regimes in power, political asylum became much more prominent. The
contours of political asylum became intertwined with the concept of
sending people back to the country of origin because of crimes com-
mitted there. This nascent extradition law fluctuated from sending back
political refugees, to refusing to return any asylum seekers, to finding
the compromise, first reached in in Belgium, of not extraditing
persons for political crimes. This approach was soon followed by sev-
eral European countries between and .
B. THE PERIOD BETWEEN THE FIRST AND SECOND
WORLD WARS
As a result of the very large number of people displaced after the First
World War and the diculty of returning them, especially , Rus-
sians, to their countries of origin due to changes in the political climate,
the council of the recently established League of Nations decided to
7 Emerich de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct
and Aairs of Nations and Sovereigns
ibid
9 Ibid.
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