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Foundations of Asylum in International Law

Foundations of Asylum in International LawWhile asylum is an ancient concept, the December 1948 Universal Declaration of Human Rights gave considerable official weight to the concept. The United States was one of the original signatories of that Declaration. In fact, Eleanor Roosevelt, wife of the late President Franklin D. Roosevelt, was both a representative to and then the chair of the United Nations (UN) committee charged with its drafting. [For information about this process, see Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York, 2001.]

Recognizing in its Preamble that "[D]isregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, …" Article 14 of the Universal Declaration identified the right of individuals "to seek and to enjoy in other countries asylum from persecution."

A few years later, in July 1951, the United Nations Convention relating to the Status of Refugees provided the world with a definition of refugee based on a fear of persecution and set forth certain responsibilities and expectations for signatory states to live up to in the treatment and processing of refugees, including asylum-seekers.

The international definition of refugee is a person outside his/her country of nationality and, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion is unable or unwilling to return. In addition, Article 31 of this Convention bound signatory states to not penalize refugees and asylum-seekers who "enter or are present in their territory without authorization, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence." The United States acceded in 1968 to the 1967 Protocol relating to the Status of Refugees, which incorporates the Convention.

The Refugee Act of 1980, and subsequent modifications of it incorporated into the Immigration and Nationality Act, provides that:

Any alien who is physically present in the United States or who arrives in the United States … irrespective of such alien's status, may apply for asylum … (sec. 208 of the INA)