Opinión Consultiva sobre la institución del asilo y su reconocimiento como derecho humano en el Sistema Interamericano de Protección

• Published date: 12 July 2018

ADVISORY OPINION ON THE INSTITUTION OF ASYL UM AND ITS

RECOGNITION AS A HUMAN RIGHT IN THE INTER-AMER ICAN

SYSTEM OF PROTECTION

San José, Costa Rica, 12 July 018.- On May 30, 2018, the Inter-American Court of Human

Rights (“the Court”) issued an Advisory Opinion on the Institution of Asylum and its Recognition

as a Human Right in the Inter-American System. Notice was given to the parties today. This

Advisory Opinion was requested by the State of Ecuador. The text of the Opinion can be found

here.

The Court interpreted the reach of the protection given under Article 22(7) of the American

Convention on Human Rights and Article XXVII of the American Declaration on the Rights and

Duties of Man, which recognize the right to seek and receive asylum in a foreign territory.

In particular, the Court declared upon the relative issue of whether this human right protects

both territorial asylum and diplomatic asylum. Similarly, the Court determined the human rights

obligations of Member States of the Organization of American States regarding the host country

and, in this case, for third States, in virtue of the risk that persons seeking international

protection could suffer, which was the reason for the principle of non-refoulement.

Starting with the inclusion of the term “in a foreign territory” within the instruments, (which

clearly refers to the protection derived from territorial asylum as opposed to diplomatic asylum),

and in an analysis of the preparatory work of the American Declaration regarding the choice of

the States to omit the concept of diplomatic asylum as a protected classification under such

human rights norms, the Court held that, given the protections enshrined by Article 22(7) of the

American Convention and Article XXVII of the American Declaration, the right to seek and

receive asylum can be contemplated as a human right to seek and receive international

protection in a foreign territory, including refugee status under the relevant United Nations

instruments or corresponding national laws as well as territorial asylum under the different

Inter-American conventions on the topic. Similarly, the Court concluded that the scope and

breadth of diplomatic asylum should be governed by the appropriate interstate conventions and

the provisions of internal legislation, considering that the States have the sovereign right to

choose whether to grant such asylum.

In addition, the Court emphasized that the general obligations established by the American

Convention are applicable to the conduct of diplomatic agents deployed to the territories of third

States, whenever the nexus of personal jurisdiction can be established with the particular

person. In this vein, the Court considered that the ambit of protection against refoulement (that

is, the prohibition on sending a person back to the territory in which their life, integrity, security,

and/or liberty may be at risk due to persecution or threat of persecution, generalized violence,

or massive human rights violations, among others, as well as where they run the risk of being

subjected to torture or other cruel, degrading, or inhuman treatment, or to a third State from

which they could be sent to a territory where they could incur these risks) is not only limited to

Press Release

Inter-American Court of Human Rights

CorteIDH_CP-28/18 Inglés

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