The Contemporary International Law Status of the Right to Receive Asylum

This article will consider whether contemporary international law has evolved to a point where there is now an individual right to receive asylum opposable to the state's right to expel. In the literature, it is commonly understood that no such right to receive asylum exists. Instead, where treaties might provide for a `right to asylum', the usual interpretation is not that the person has a right to receive asylum but rather a right to apply for it. This article questions whether this conclusion is still correct in the light of contemporary developments in the law. There are a significant number of considerations pointing to a right to receive asylum. In the drafting of Universal Declaration of Human Rights and Refugee Convention, there was already considerable disagreement over whether there should be a right to receive asylum but in the end a more conservative wording was adopted. However, some subsequent human rights treaties following the UDHR have explicitly provided for the right to receive asylum. The practice of states has also evolved, partly under the influence of these treaty regimes. States are increasingly providing for a right to receive asylum in their domestic law and assimilating refugees to asylum seekers, often granting asylum as the automatic result of a positive refugee status determination. The bulk of these practices are converging into a widespread and consistent practice with strong opinio juris on point. These trends suggest a crystallizing customary international law right to receive asylum, albeit limited to refugees.