The Constitutional Right To Asylum - The Wave Of The Future In International Refugee Law

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:15:53.759202+00:00

Updated: 2026-08-26T17:05:56.162+00:00

THE CONSTITUTIONAL RIGHT TO ASYLUM: THE WAVE

OF THE FUTURE IN INTERNATIONAL REFUGEE LAW

Praveen Baura, Master of Law, Faculty of Law, Soban Singh Jeena University Almora

ABSTRACT

Incorporating both humanitarian along with political aspects, the constitutional right to asylum marks a fundamental evolution in the field of international refugee law. It highlights how constitutional asylum laws differ from conventional international protections by examining their evolution and effects. The Constitutions frequently expand the particular safeguards granted by international law such as the Refugee Convention as well as its Protocol that include protections against discrimination based on race, religion, caste, sex, place of birth and other grounds. The Constitutional laws are dualistic in nature, combining political strategy with humanitarian aim to expand and also limit refugee rights. Therefore, the right to asylum as a constitutional right might mark a radical change in international refugee law and influence future international practices and policies.

Keywords: Asylum, Constitutional Right, Refugee, International Law, Right to Asylum

INTRODUCTION

It has been witnessed that the international system mostly failed to protect the refugees' rights, domestic constitutions may be the best security for refugees1. This system has become even worse, and it was already facing problems before the 2015–16 Syrian crisis2. The current system is unable to provide sufficient protection for over 22.5 million refugees worldwide which is the largest number after World War II3. According to estimated data, between 50 and 250 million individuals may have to relocate by

2050 as a result of severe droughts and rising sea levels which is expected to drown several

small island states4. While relocation due to climate change is not the only reason, the current magnitude of movement and possible displacement presents an unparalleled obstacle for the global community5. Thousands of people have simultaneously left countries including Syria's war-torn country in order to avoid persecution and, for many, the possibility of dying at the command of the Islamic State6.It often happened that their voyage across Europe proved to be just as dangerous; many have died in overcrowded vehicles and boats7 or perished while crossing the Mediterranean8.

HISTORICAL BACKGROUND

The term "asylum" originated from Greek9. The word comes from the Greek sylao, which means "without capturing, without infringement, without devastation10." In fact, the idea of refuge played a big role in Greek history. For example, Herodotus tells the tale of Adrastus, 1 For a review of the critiques of the international refugee protection system, see generally ALEXANDER BETTS & PAUL COLLIER, REFUGE: RETHINKING REFUGEE POLICY IN A CHANGING WORLD (2017).

2 Maryellen Fullerton, Asylum Crisis Italian Style: The Dublin Regulation Collides with European Human Rights Law, 29 HARV. HUM. RTS. J. 57, 60 (2016)

3 Jane McAdam, Environmental Migration, in GLOBAL MIGRATION GOVERNANCE 153, 153–54 (Alexander

Betts ed., 2011). 4 Anna Edwards, Life on the Next Atlantis: Doomed Pacific Island Which Will Be Swallowed by the Sea Within

60 Years, DAILY MAIL

5 JANE MCADAM, CLIMATE CHANGE, FORCED MIGRATION, AND INTERNATIONAL LAW 3 (2012).

Refugee Population by Country or Territory of Origin,

WORLD

BANK,

http://data.worldbank.org/indicator/SM.POP.REFG.OR [https://perma.cc/FT43-7NEF]. 7 Alison Smale et al., Europe Reels from More Migrant Deaths on Land and Sea, N.Y. TIMES (Aug 28, 2015)

8 Mediterranean Migrant Arrivals in 2016: 204,311; Deaths 2,443, INT’L ORG. FOR MIGRATION (May 31,

2016)

9 DARREN J. O’BYRNE, HUMAN RIGHTS: AN INTRODUCTION 343 (2003)

10 Waldo Villalpando, Asylum in History, in AN INSTRUMENT OF PEACE: FOR FORTY YEARS, UNHCR

ALONGSIDE REFUGEES 33, 36 (Lionello Boscardi et al. eds., 1991);

who fled to Sardis after killing his brother by mistake. Adrastus was kindly welcomed by King Croesus, he promised to protect him11. The Judeo-Christian heritage also recognises the right to refuge. Based on hospitality, the Hebrew tradition views giving shelter as a divine duty, as seen when three travelers pay Abraham, the patriarch of the Bible, a visit12. As it says, "Those that have accepted the Faith & fled their homes & struggled for the sake of God, along with those that protected them as well as aided them, they are the real believers. " The Quran makes clear how important refuge is 13. Originally, sanctuary was largely provided by religious organizations, but over time, kings and monarchs took on this duty14. This shift represented a more general shift from asylum as a religious obligation to help people in need to a declaration of sovereignty and occasionally, resistance15.

Despite this, academics have often approached asylum from the standpoint of the state that is giving it rather than from the standpoint of an individual's inalienable right16. Asylum seekers did not have the recognition of asylum as a human right till the early twentieth century17.

ASYLUM AS CONSTITUTIONAL RIGHT

A form of a right to asylum found in provisions of different nations enshrined in constitution

or statutory systems goes beyond mandatory or temporary refugee safeguards and functions as a springboard to civil rights18. States are free to decide when and how to give asylum to refugees in accordance with international law. However, under domestic law, numerous states have made significant provisions. Many states use administrative law to provide comprehensive instructions on how to obtain asylum, hence reducing the number of qualified applicants.

11 J. TALBOYS WHEELER, THE LIFE AND TRAVELS OF HERODOTUS IN THE FIFTH CENTURY

BEFORE CHRIST 254–55 (1856).

12 SCHUSTER, supra note 16, at 91–92 n.15; Psalms 146:9 (King James).

13 THE KORAN 8:74 (N. J. Dawood trans., 50th Anniversary ed. Penguin Books 2006).

14 THE CHALLENGE OF PROTECTION, supra note 29, at 33 (noting that King Henry VIII replaced Churchoperated sanctuaries with “cities of refuge” in the 16th century). 15 id. at 33 (“As the power of the monarchy grew, the right to grant asylum increasingly became the prerogative of the state and the inviolability of internal asylum in holy places declined correspondingly.”).

16 ANDREAS WEDER, ZUR BEHANDLUNG DER POLITISCHEN VERBRECHER IM INTERNATIONALEN

STRAFRECHT 16 (1887)

17 THE CHALLENGE OF PROTECTION, supra note 29, at 33

18 Gil-Bazo, supra note 16, at 11

For instance, the "Regulations Concerning the Treatment of asylum seekers in Israel19 internal directive, issued in 2002 by the Ministry of the Interior, governs Israeli asylum law. This directive, along with other immigration laws, effectively prevents Palestinians as well as citizens of several other Arab countries from migration to Israel20. It's noteworthy that the state has a great deal of latitude to modify its policy in response to shifting refugee flows when the conditions for asylum are outlined in ordinary law. Immigration officials' discretion is restricted by statutory rights, which can be changed by a simple majority of the legislature21. Therefore, the legislature can easily revoke or amend any law which will affect the rights that give asylum in response to a refugee inflow. Apart from this, regulatory frameworks can be changed when the executive makes modifications.

A state pre commits to giving refuge to certain groups when they will have right to asylum as their constitutional right, making it more difficult for popular majorities to back out of these commitments as political opinions shift. A mere majority of legislators cannot alter constitutional law, which supersedes ordinary law in all legal systems22. While state amendment procedures differ, nearly all of them erect obstacles to relatively simple modifications, setting constitutional law apart from common law23. Therefore, nations that constitutionalised the right to asylum effectively limit their capacity to base their response to migrants on political opinion.

The right to asylum could be constitutionalised for four reasons: (1) to use asylum as a tool for foreign policy and allowing states to criticize the freedoms and practices of other states; (2) to provide opposition groups abroad with a means of escape;

19 ANAT BEN-DOR & RAMI ADUT, ISRAEL—A SAFE HAVEN? PROBLEMS IN THE TREATMENT

OFFERED BY THE STATE OF ISRAEL TO REFUGEES AND ASYLUM SEEKERS 68–71 (2003) (reprinting the regulations in Annex A).

20 The Citizenship and Entry into Israel Law (temporary provision) 5763–2003, art. 2 (2003)

21 William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J.

1215, 1215–16 (2001) 22 Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI. REV. 355, 360–65 (1994)

23 Dieter Grimm, Types of Constitutions, in THE OXFORD HANDBOOK OF COMPARATIVE

CONSTITUTIONAL LAW 98, 111 (Michel Rosenfeld & Andr ́as Saj ́o eds.,

(3) to stimulate the economy in nations with aging labor forces; and (4) to present a specific portrayal of a state to the world at large, particularly in the face of significant outflows of migrants.

1. Denouncing Foreign Governments

Using the constitutional right to asylum as a foreign policy weapon is arguably the most apparent way that it may serve any state's self-interest. As a result, the privilege of obtaining asylum is special and has the power to affect foreign and international relations. Asylum acknowledges the frequently unavoidable inversion of power which leads the citizen's home country normally the guardian of basic rights in becoming the target of protection from the international community or a specific foreign government24 . The two sides of the constitutional right to asylum, which inherently puts the rights of people seeking asylum against the duties and limitations of the state that grants those rights, seem integrated into the constitutional changes that shape the asylum rights.

2. Fortifying International Opposition Groups

By giving them a means of escape, the right to refuge may likewise be utilized to bolster opposition parties operating outside. This makes it possible for governments to support and assist people and organizations who are against foreign regimes, strengthening their position and also weakening the authority of such groups or authority.

3. Adding to a Reducing Workforce

States may also be persuaded to recognise asylum under the constitution by economic factors. In particular, the influx of international migration can augment a dwindling workforce in nations where the population is aging or dropping. Today, it might be difficult to meet labor market demands in many nations as a result of declining birth rates or rising emigration of native people of working age25.

24 MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 48–49

(1983); James C. Hathaway, Reconceiving Refugee Law as Human Rights Protection, 4 J. REFUGEE STUD. 113, 122–23 (1991). 25 David E. Bloom et al., Implications of Population Ageing for Economic Growth, 26 OXFORD REV. ECON.

POL’Y 583, 583 (2010)

4. Spreading Well-Meant Words

The entitlement to asylum may also be advantageous to nations hoping to portray themselves as a refugee-friendly place, particularly if real human rights seem to differ from each other. The government and people of the right to asylum granting state can thus rejoice in affluence, real or imagined, because their entitlement to asylum is guaranteed by the constitution26. More broadly, constitutional provisions pertaining to asylum allow governments to present a particular external face to the world at large27.

RIGHT TO ASYLUM IN INTERNATIONAL LAW

The definition and content of the entitlement to asylum are mostly unclear, according to the literature on international law28. Due to the uncertainty, the result appear perhaps in part, from the reality that, although refugees are afforded a number of rights under international law, they are not specifically granted the right to be awarded asylum, or to have over time legal protections in their new country29. A. International Law Responsibilities to Refugees

International law has over the years imposed a comprehensive set of obligations on nations to provide particular safeguards to particular categories of non-citizens under particular conditions30. These international legal duties frequently serve as a focal point for campaigners trying to point out states of their compassionate obligations when refugees arrive on foreign soil. The primary international legal texts—the International Covenant on Political and Civil Rights, the Refugee Convention as well as its Protocol, and others—have in fact been cited extensively in the discourse surrounding the present refugee crisis31. Many international as well as regional legal instruments protect a person's right to apply for asylum and leave their native country in order to seek safety elsewhere.

In the Universal Declaration of Human Rights, for example, Article 13(2) declares that "[e]veryone has the

26 Tom Ginsburg & Alberto Simpser, Introduction, in CONSTITUTIONS IN AUTHORITARIAN REGIMES 10–

11 (Tom Ginsburg & Alberto Simpser eds., 2014).

27 Ginsburg & Simpser, supra note 187, at 6–15

28 Kay Hailbronner, Refugees and Asylum: The West German Case, 8 WASH. Q. 183, 183 (1985)

29 See supra and infra notes 82–120

30 T. Alexander Aleinikoff, International Legal Norms and Migration: A Report, in MIGRATION AND

INTERNATIONAL LEGAL NORMS 1 (T. Alexander Aleinikoff & Vincent Chetail eds., 2003). 31 E. Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 MINN. L. REV. 687 (2015); Andrew I. Schoenholtz, The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty First Century, 16 CHI. J. INT’L L. 81 (2015).

liberty to leave any country, including his own32". The International Covenant on Civil and Political Rights (ICCPR) similarly declares in Article 12(2) that "everyone will feel free to leave any country, including his own33. " The idea that "a State might not claim to 'own' its nationals or residents'' is central to this right34. At the moment, a sovereign state has the last say over whether to provide sanctuary to an individual; international law fails to recognise this right35. There isn't an international legal requirement to grant asylum, even if the Refugee Convention requires nations to provide specific safeguards to those who fit the description of a refugee36.

Asylum rights are also not guaranteed under the main international agreements pertaining to refugees37, including the 1951 Convention dealing to the Condition of Refugees38 and the 1967 Protocol regarding the Status of Refugees39 . B. The "Right to Asylum's” Substance

The right to be given asylum has "no clear or agreed meaning40 since it is not protected by international law, and its substantive legal responsibilities are unclear41. Permission to stay in a nation without a formal grant of asylum, in the words of Professor Boed, "provides the individual with refuge, which amounts to de facto asylum42. Some contend that the essence of the asylum right surpasses the provisions stipulated by international law43. The right to asylum involves protections not yet provided by international law if there is no right to be given asylum under that body of law. 32 Universal Declaration of Human Rights, art. 13, 2, G.A. Res. 217A, U.N. Doc. A/810 (Dec. 10, 1948). 33 International Covenant on Civil and Political Rights, art. 12, 2, Dec. 16, 1966, 99 U.N.T.S. 171, 176.

34 GRAHL-MADSEN, supra note 39, at 26.

35 GOODWIN-GILL & MCADAM, supra note 12, at 149.

36 . GRAHL-MADSEN, supra note 39, at 2; DANIELE ́ JOLY, REFUGEES: ASYLUM IN EUROPE 16 (1992)

37 Refugee Convention, supra note 13.

38 Refugee Protocol, supra note 13. R

39 UNHCR, HANDBOOK AND GUIDELINES ON PROCEDURES AND CRITERIA FOR DETERMINING

REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE

STATUS OF REFUGEES 8 (2011)

40 GRAHL-MADSEN, supra note 98, at 50.

41 Hailbronner, supra note 94, at 183 (arguing that the right of asylum has been one of the most difficult human rights to define); Weis, supra note 94, at 378;.

42 Boed, supra note 16, at 11 n.58.

43 David A. Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, in REFUGEE POLICY: CANADA AND THE UNITED STATES 30, 32–33 (Howard Adelman ed., 1991).

Particularly, refugee status is a prerequisite for fulfilling international legal duties. Although different nations use different administrative procedures for offering legal residence, the main characteristic is the fact that the asylee is granted the ability to live permanently in a nation and acquire full citizenship rights.

ASYLUM IN WORLD’S CONSTITUTION

For a thorough examination of the reasons behind the adoption of the right to asylum, information about which states have included the provision in their statutes must be gathered. In order to collect this data, we looked through every national constitution drafted between

1781 and the present, assessed if the right to asylum was mentioned, and then calculated the

results44. Thanks to this process, we are able to provide what we think is the first thorough and organized history of how the right to asylum has changed across national constitutions45. Generally speaking, for a right to be considered a part of the constitution, it had to be stated clearly. We coded constitutions that promise "protection" or "sanctuary" for "foreigners" or "outsiders," in addition to those that explicitly state a person's "right to asylum" or the accessibility of "asylum. " The general method used to code national constitutions is the same as that described in previous research by Professor Versteeg46. The elements designated as rights for people in national constitutions frequently expand the fundamental reach and extent of the Refugee Convention, according to an evaluation of constitutional as well as international protections.

In particular, these constitutional provisions go beyond the bounds of international law, which exclusively provides sanctuary to people who are persecuted for "reasons of ethnic background, nationality, membership of a specific social group, as well as political opinion," and grant asylum more widely47. The percentage of constitutions incorporating the right to asylum increased significantly in the 44 This data has been collected in a repository of all written constitutions, maintained by the Cline Center for Democracy at the University of Illinois at Urbana-Champaign. CLINE CTR. FOR DEMOCRACY 45 A potential shortcoming of this data is that it does not rely on information found in ordinary legislation, case law, executive and administrative documents, and secondary sources. As such, it captures only the text of the constitution, excluding any of its judicial interpretations.

46 Benedikt Goderis & Mila Versteeg, The Diffusion of Constitutional Rights 39 INT’L REV. L. & ECON. 1, 4–5 (2014)

47 Refugee Convention, supra note 13, ch. I, art. 1, § A, ¶ 2.

1990s. Early on, it became clear that refuge had two distinct functions: it was a human right and an instrument for politically limited foreign policy. The right to asylum was frequently expressed in terms of ideology in several of the constitutions that we looked through. Often, the language of these constitutions included clauses that looked to change the right from a humanitarian protecting role to a political tool with a distinct ideological message, such as allusions to political activity or particular restrictions on granting of asylum. The states that declared themselves to be socialists had the most famous examples of these kinds of constitutional clauses48. These regimes severely curtailed the application of the asylum right, restricting it to specific groups of individuals or political causes49.

SUGGESTIONS

● Examine the historical occurrences, such as significant refugee crises or political shifts and accordingly make amendments for the creation and development of asylum laws. ● Examine the constitutional provisions on asylum in various political systems, such as authoritarian and democratic ones, to demonstrate how political environments influence the right to asylum. ● Examine the reason behind the nations who have enacted or substantially altered their asylum laws and how they affect international and national refugee policy. ● Analyze how international legal frameworks and constitutional laws on asylum interact and also analyze the ways in which conventions and international agreements coincide with or conflict with constitutional rights to asylum. ● Examine how the asylum provisions of the constitution actually affect refugee protection.

Consider how these clauses impact the way in which asylum seekers are treated, how refugee rights are implemented, and how successful asylum systems work at global level.

48 ISTVAN ́ KOVACS ́ , NEW ELEMENTS IN THE EVOLUTION OF SOCIALIST CONSTITUTION (1968)

49 Kirchheimer, supra note 34, at 990

● Examine possible directions for declaring asylum rights as constitutional rights in the future and Think about how new concerns like migration or local disputes could affect the way asylum laws will evolve. ● Make policy for states to put asylum rights in their constitutions. Provide best practices for striking a balance between political and humanitarian goals.

CONCLUSION

A major change has been witnessed in the development of international refugee law in regard

with constitutional right to asylum, which reflects the intricate interaction between political ideology and humanitarian values. It indicates that although international law has historically offered a foundation for safeguarding refugees, it does not ensure the right to asylum in the sense that it will protect the rights of people. National constitutions reflect a broader and more ideologically motivated approach by extending asylum rights beyond the bounds imposed by any international agreements or conventions. The right to asylum guaranteed by the constitution is not only a path towards improving refugee rights, but it also strikes a balance between political realities and humanitarian commitments. A fair and efficient system of refugee protection will be shaped by the interaction between

international and constitutional approaches to asylum to mitigate the migration and refugee crises.