A House with Two Rooms - The Advocates for Human Rights

d. Asylum from Persecution
The political and legal reality is that states generally have not undertaken, and
foreseeably will not undertake, an obligation to grant asylum in the sense of a
lasting solution. The peremptory norm of non-refoulement secures admission and, in
the individual case, may further raise the presumption that a local durable solution
will be forthcoming. In the case of large-scale movements, however, no such
presumption is raised. 30
The concept of asylum relates more to the rights and duties of states – both to grant asylum and
to respect asylum that is granted by another sovereign state – rather than to the right of individual
refugees seeking protection. States have not accepted an international obligation to grant asylum
to refugees 31 and the 1951 Refugee Convention does not include the affirmative right to asylum. 32
Efforts to recognize a right to asylum in treaty largely have stalled since the adoption of the
Declaration on Territorial Asylum in 1967 and the U.N. Conference on Territorial Asylum convened
a decade later.
Under the OAU Refugee Convention, states “shall use their best endeavours consistent with their
respective legislations to receive refugees and to secure the settlement of those refugees who, for
well-founded reasons, are unable or unwilling to return to their country of origin or nationality.” 33
A State Party thus must both accept a refugee within its borders and find a longer-term solution for
settlement. This obligation is tempered in three ways. First, a state is obligated to provide harbor only
to the extent that they are capable. Second, such harbor need only be provided to the extent that
domestic legislation does not dictate otherwise. Third, a state is not obligated to provide longer-term
harbor itself: it need only receive the refugee, but then may find a durable solution for the individual
in a second state.
The right to asylum is also upheld in the African Charter. 34 Under Article 12(3) of the Charter:
“Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries
in accordance with laws of those countries and international conventions.” The right contained
within Article 12(3) also should be read within the context of a State Party’s other treaty-based
obligations. However, unlike within the OAU Refugee Convention, the African Charter does not
limit an individual’s right to asylum by a state’s capacity to provide safe harbor.
While the United States does provide that any person who is physically present in the United
States or who arrives in the United States may apply for asylum, 35 whether to grant asylum remains
discretionary and numerous exceptions to asylum eligibility exist. 36
556