Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 55
cution”. 60 While not enshrining a right of asylum, the Geneva Convention
relating to the status of refugees of 1951, read together with its Additional
Protocol of 1967 (Geneva Refugee Convention), contains a set of rights
and entitlements that follow from the recognition of refugee status. The
Convention provides a quasi-universal definition of refugee in Article 1A.2
according to which a refugee is a person who “owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence as a result
of such events, is unable or, owing to such fear, is unwilling to return to it.”
Although the right of asylum is not guaranteed by binding international
human rights law treaties at a global level, the right is protected in several
regional instruments. The American Declaration on the Rights and
Duties of Man protects the right, in Article XXVII, “to seek and receive
asylum.” The ACHR, in Article 22.7, protects the right “to seek and be
granted asylum in a foreign territory, in accordance with the legislation
of the State and international conventions, in the event he is being
pursued for political offenses or related common crimes.” Despite the
seemingly more liberal reference to a “right to seek and receive or be
granted asylum”, the Inter-American Commission has stressed that this
right “implies no guarantee that it will be granted”. 61 However, it does
assure the right to be heard in presenting the asylum application and
other procedural guarantees discussed below. 62 The Commission has
generally interpreted these provisions in light of the Geneva Refugee
Convention. 63 The meaning of asylum under the American Convention
and Declaration may also include the other forms of asylum recognised
in several Inter-American Conventions on the subject. 64
60 See, Guy S. Goodwin-Gil, The Refugee in International Law, Oxford University Press, 2 nd Edition,
1998, p. 175; and Alice Edwards, “Human Rights, Refugees and The Right ‘To Enjoy’ Asylum”,
17 Int’l J. Refugee L. 293 (2005), p. 299. Within the European Union, the right of asylum is enshrined
in Article 18 of the Charter of Fundamental Rights of the European Union (“EU Charter”).
61 Report on the situation of human rights of asylum seekers within the Canadian refugee determination
system, OAS Doc. OEA/Ser.L/V/II.106,
Doc. 40 rev., 28 February 2000 (IACHR,
Report on Canada), para. 60.
62 Ibid.
63 Desmond McKenzie and Others v. Jamaica, IACHR, Cases 12.023—12.044—12.107—12.126—
12.146, Report No. 41/00, Merits, 13 April 2000, para. 229; Donnason Knights v. Grenada,
IACHR, Case 12.028, Report No. 47/01, Merits, 4 April 2001, para. 111; Haitian Interdictions
Case, IACHR, op. cit., fn. 46, paras. 151–163.
64 Convention on Territorial Asylum, OAS, A-47, adopted on 28 March 1954; Convention on
Diplomatic Asylum, OAS, A-46, adopted on 28 March 1954; Treaty on Asylum and Political
Refuge, adopted on 4 August 1939; Convention on Political Asylum, OAS, A-37, adopted
on 26 December 1933; Convention on Asylum, adopted on 20 February 1928, at the Sixth
International Conference of American States. Due to the limited number of States and reach
of subject-matter of these conventions, they will not be dealt with in this Guide.