Research On The International Legal System Of Asylum

Asylum, an ancient legal system, has developed from thousands years of humanhistory. Asylum stood at the cradle of human’s worship of superstition, developed inthe growth of the Christian church, matured in diplomatic practice of nation-state,famed for the protection of political offender after the France Revolution, transformedto protect refugees after World War II, reborn in the protection of human rights.Asylum has experienced numerous political and institutional changes and witnessedthe history of human development. The history of asylum is always related to thecharacteristic temper of an age and gains the force to growth. Currently, Asylum hasbeen combined within the system of human rights and will continue to play animportant role in the future.Since the day it was born, asylum has always complicated relationships withpower, religion, interests and human rights. The concept of asylum is filled withmisunderstanding, fuzzy and mysterious. The main purpose of this dissertation is toclarify the different characteristics of asylum in its different development stages anddetermine the contemporary legal concept of asylum, determine the legalresponsibilities of asylum country by review its commitment to international humanrights law and refugee law, make sure individuals in what extent to enjoy the right ofasylum and enjoy what kind of human rights in the process of asylum. Finally, thestudy returns to the respective issues of China. As a developing power in the world,China shall pay attention to the issue of asylum. Asylum is an important part of thecontemporary human rights protection. China’s huge development shall be harmonious with the protection of human rights. The dissertation is divided into fivechapters. The number of characters of this dissertation is totally about two hundredthousand, including the development history of the asylum, object of asylumprotection, conditions of asylum implementation, rights of asylum seekers and otherimportant issues.In the introductory section, the dissertation first introduces the UNHCR report oncontemporary global practice of asylum, including the number of asylum seekersreceived by40major asylum countries in the past two years. The figure of massiveasylum seekers visually illustrates the importance of the institution of asylum in theinternational legal system today. Then the author analyzed the academic materialswhich collected in the process of writing. Overall, foreign scholars moved far away onasylum issues than domestic scholars, either on wide range or degree of depth.Foreign scholars have come into agree for some basic problem of asylum which arestill been controversy and conflict within China scholars. Lots of literatures of Westresearchers reflect the point of view of consistency. The focus of their research hasgone into the deeper theoretical level. On the other hand, our scholars generally haveno much interest for research on the issue of asylum. Asylum history, the concept ofasylum, asylum implementation conditions, protected objects, and other basic issuesare not resolved. We still misunderstanding for those basic asylum problems. Solvethe basic problems of the asylum system will become important goal of this writing.The main research methods of this study include historical analysis, comparativeanalysis, case studies, charts analysis and other methods.The first chapter is an overview of the basic questions about the concept ofasylum and protection objects. The first chapter is mainly discusses the history ofasylum, the object of protection of asylum, the modern concept of asylum, therelationship between human rights and sovereignty. First, the chapter restated asylumin the age of ancient Greece, ancient Rome and medieval Christianity, and thendiscusses the asylum after the born of nation-state and the situation after the twoworld wars and other historical period. These historical characteristics help to deepenour understanding of contemporary institution of asylum. Subsequently, the chapter explains the two forms of the asylum, and territorial asylum and diplomatic asylum.The territorial asylum is recognized by contemporary international law and nationalpractices. The main object of this paper is territorial asylum rather than diplomaticasylum. Diplomatic asylum is generally prohibited by the contemporary internationallaw, only recognized within a limited range of areas, such as South America wherediplomatic asylum has legal force according to regional treaties. Secondly, thischapter focuses on the problem of protection object of asylum. Domestic scholars tendto agree that asylum is made to protect political offenders rather than politicalrefugees. This chapter discussed the history of protection for political offender andfinds that political offender once been protection object of asylum in the period ofFrench Revolution. It has been changed till now. The practice of internationalorganizations, national domestic legislation and judicial practice show that theprotection object of contemporary asylum system has been extended to the politicalrefugees. The “political offender Standard” has been taken place by “persecutionstandards”. Finally, the chapter discusses the relationship between asylum system andthe national sovereignty and human rights. Contemporary right of asylum has twomeanings, each of them related to sovereignty and human rights protection. Theasylum right is owned by sovereignty countries in the first place, which is part of thenational sovereignty. According to the principle of sovereignty and independence, thestate has the right under international law to determine whether or not to grant asylumto a person. There is no treaty requires countries must implement asylum. Meanwhile,the country of origin can’t consider the implementation of the asylum as unfriendlyand hostile behavior. In addition, the right of asylum also belongs to individuals.However, modern international law only grants individuals the right to apply forasylum. In the process of asylum, including application, examination andimplementation of asylum, the country of asylum and related countries shall respectthe human rights of the asylum seekers. The spirit of human rights protection has gonedeep in the process of asylum.The second chapter is the basis of the international law on asylum, includinginternational treaties, customary international law and general principles of law. First, this chapter discusses the asylum country’s obligations under international law frominternational refugee treaties and international human rights treaties. Internationalrefugee treaties mainly refer to the1951Convention relating to the Status of Refugeesand its1967Protocol. The Convention is the most important international law in thefield of asylum. The asylum countries tend to develop their domestic asylum lawaccording to the1951Refugee Convention. The Convention also provides theprinciple of non-refoulement of refugees. International human rights treaties inasylum system mainly refer to the "Universal Declaration of Human Rights",International Treaty on Civil and Political Rights and the International Convention onEconomic, Social and Cultural Rights. These human rights conventions make sureasylum seekers enjoy various rights during the asylum procedure. Secondly, thechapter explains international customary law in asylum which mainly related to theprinciple of non-refoulement. This chapter focuses on the nature of the principle, suchas its law-making purpose, national practices and widespread consistency. Finally, thechapter discusses the general principles of law which as is one kind of source ofinternational law,. In the asylum field, general principles of law does not occupy themost important position, but the fact of the world mainstream legislation consistentitself prove the existence of such a general principle of law. It may play a role infuture when international treaty or customary law could not solve some specificproblems.The third chapter concerns the examination criteria for implementation of theasylum and the procedures for application. It has been divided into four parts: thecriteria of implementation of asylum, denying asylum, stopping asylum andapplication proceedings. First, the criteria for examination is the most important issuesof this article, which focuses on the justified fear of "persecution","five kinds ofpersecution," living abroad, out of their own country’s protection. This criterion camefrom five premise condition for refugee status under the1951Refugee Conventionwhich has been accepted as the precondition for the grant of asylum in most asylumcountries in the world. Therefore, individuals qualified as the refugee status under1951Refugee Convention are often able to obtain asylum in the country of asylum. Secondly, the chapter explains three reasons for the countries of asylum refused togrant asylum: persons have been protected or assistance by United Nations, or personsdetermined to be not deserve to be protected, or person who have committedinternational crimes or serious non-political crimes and violation of the purposes andprinciples of the United Nations. Thirdly, this chapter explains the terminationcondition to stop the implementation of the asylum: asylees voluntarily accept theirorigin country’s protection, the asylees voluntary resettled on their origin country,asylees acquired a new nationality, and reasons caused the asylees fear have no longerexists. Finally, the chapter discusses the fair and efficient asylum application process.For this issue, the rules of international law exists but in the way of the resolutions ofinternational organizations. Resolutions of international organizations to encouragethe countries of asylum to give asylum seekers a fair and speedy review process, toprovide the necessary assistance in the program, and to protect asylum-seekers’ mostbasic human rights. The procedure mainly related to the basic principles of theapplication, to ascertain the facts and to allow the appeal certain aspects.The fourth chapter is about asylum-seekers’ variety of rights in each stages ofasylum. This chapter discusses of the three types of rights in chronological order: notpush back asylum-seekers to their origin frontier or area; asylum applicant’s receptiontreatment; formal treatment after grant of asylum. First, the chapter discusses the legalbasis of the principle of non-refoulement of refugees which including the internationalrefugee treaty, two human rights treaties and customary international law. This partdeals with problems within the principle, such as prohibited conduct, the object ofprotection, the territorial scope of the five targeted threats. Secondly, this chapterdescribes the standards for the treatment of asylum reception which set byinternational human rights law and international refugee Convention. This part alsofocuses on a proposed resolution of the UN Refugee Agency for the treatment ofasylum-seekers in reception and hospitality policy. The proposal is important tounderstand convention obligations under international law for the countries of asylum.The asylum country is not only requested to protect asylum-seekers’ physiologicalneeds and human dignity, but also need to protect the sick and elderly and other special groups. Finally, the chapter explains the formal treatment of political refugees.The formal treatment generally refers individual qualified refugee status under the1951Refugee Convention whom received legal residence in the country of asylum.The formal treatment included economic and social rights, which means the right toemployment, the right to freelance practitioners, the right to social assistance, housingrights, intellectual property rights. The treatment also refers to civil and politicalrights, such as the right to obtain travel documents, the right to freedom of association,the right to attend the court etc. Refugees enjoy the right of final settlement, includingvoluntary repatriation, return home voluntarily, resettlement and naturalization.Chapter V is about the status of China’s asylum system and suggestions for itsimprovement. Those legal issues include China’s participation in international treaties,domestic legislation and judicial practice compliance with obligations underinternational law. First, the asylum historical practice of China is mainly related toIndo-Chinese refugees, North Korean defectors, Burma refugees. These practicesprovide the realistic basis for further improvement of China’s asylum legislation andjudicial practice. But these practices also have revealed some serious problems, suchas China does not recognize the concept of political refugees, not completely fulfillnon-refoulement obligations, lack of specialized applications procedures. Secondly,the chapter discusses China’s participation in the asylum-related treaties. China isheavily involved in the asylum of the relevant international conventions, such as theRefugee Convention and Conventions on Human Rights. China’s major conventionobligations under international law include criteria for determining refugee status, theprinciple of non-refoulement, treatment standards for asylum seekers. This chaptercomment on the relevant provisions of China’s domestic legislation on asylum issues,including constitutional provisions, sector-specific law and administrative rules.Finally, this chapter contains some recommendations for the Improvement of theasylum legislation and practice of China. Such as Recognize the concept of refugee;improve the standard of treatment for refugee status; determine the examinationstandards for grant asylum to seekers; creation of a special refugee procedures andexplicitly specialized competent authorities.