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The Universal Declaration of Human Rights

Article 14 (Asylum)

Although the universal Declaration of Human Rights is a non-binding document, it is regarded as the foundation document for human rights and as the human rights standard that countries should set for themselves.

It deals with asylum in Article 14 and over the years a basic misunderstanding has arisen as to what it says about the right of asylum. Given the development of the asylum crisis it is imperative that that misunderstanding be replaced by a genuine understanding of what the Declaration actually says.

The following, as can be clearly seen, is not an "interpretation" by I.C.P. but an incontrovertible statement of fact based upon the drafting history of the document.

As the years have passed, it has become customary for the media and the general public and, indeed, all but the most careful of lawyers to speak of a "right to asylum" as if this meant the right to be granted asylum. In actual fact the "right" has classically been the right of the State to grant asylum, not the right of the asylum-seeker to be granted it; in other words the right of the State effectively to say to the State of origin "No you may not have x back; we have given him asylum". That was the basis on which Article 14 of the Declaration began to be drafted and it remains the position of the eventual final wording of that article.

The six drafts and final version form the appendices of Mary-Ann Glendon's very readable book "A World Made New - Eleanor Roosevelt and the Universal Declaration of Human Rights".

The first draft "The Humphrey Draft" was produced by John Humphrey, director of the U.N. Human Rights division. Here the asylum article states "Every state has the right to grant asylum to political refugees".

The second draft, "the Cassin Draft" was produced by Réné Cassin of the U.N. Commission on Human Rights which had the job of producing the Declaration. Cassin had a particular interest in and commitment to the question of asylum, being a French Jew who had lost twenty-nine of his relatives, including his sister, in concentration camps. Nevertheless, in his draft the wording remains exactly the same.

The third draft from the Drafting Committee of the Human Rights Commission reads "Everyone has the right to escape persecution on grounds of political or other beliefs or on grounds of racial prejudice by taking refuge on the territory of any State willing to grant him asylum". Note the final part of the article which keeps us in the realm of the discretion of the State and not in the situation of a right to be granted asylum.

The fourth draft, produced by the full Commission, says "Everyone shall have the right to seek and be granted asylum from persecution. This right will not be accorded to criminals nor to those whose acts are contrary to the principles of the United nations". At this point we seem to be moving to the idea of a right to asylum. We are, however, not yet to the final drafting stage.

The fifth draft of the Commission maintains this position. It reads
1. "Everyone has the right to seek and be granted, in other countries, asylum from persecution.
2. Prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations do not constitute persecution.

The sixth draft from the U.N. Third Committee on Social, Humanitarian and Cultural Affairs was framed in circumstances which focussed minds on the implications of the asylum right article and which forced a return to the more classic interpretation of that right.

It was the autumn of 1948. some of Israel's neighbours had become concerned about the burden on their societies posed by the continuing influx of Palestinian refugees. In the ensuing discussion the right to be "granted" asylum from persecution was diluted to become the right to "enjoy" asylum. This brought us back to the classic right of the State to grant asylum. The individual's right to "enjoy" asylum is no more than the State's right to say to the country of origin "We have given him asylum; you will not be allowed to have him back; he will continue to 'enjoy' or maintain that situation".

Delegates from many countries were persuaded to vote for this change after Mrs. Corbett, the United Kingdom delegate, pointed out that a right to be "granted" asylum would conflict with the immigration laws of nearly every country.

The article then read:
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the United Nations".
This remained the wording in the Universal Declaration as passed by the General Assembly on December 10th 1948.

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