The right to asylum in International Law and Islamic Law: Some Reflections
After decades of a Euro-centric, Refugee Convention-driven approach to asylum, recent years have witnessed greater acknowledgement of the role played in asylum norm development by regional instruments and states that are either not party to the Convention or have undeveloped refugee determination systems. They are consequently reliant upon non-governmental or international organisations, such as the UNHCR, to assist with refugee protection. An important dimension of such norm development is the right to asylum in accordance with Islamic principles, and this discussion highlights scholarly contributions alongside regional and national legal instruments that address asylum and refuge. It concludes with some brief reflections on the current state of play.
A brief examination of literature on asylum and Islam reveals the somewhat hidden yet rich publications on the issue. Perhaps the most influential is that of Ghassan Maârouf Arnaout, who worked as Director of the Division of Refugee Law and Doctrine at the Office of the UNHCR, and produced his influential publication in 1987, ‘Asylum in the Asylum-Islamic Tradition’. Therein, he outlined the humanitarian concept of hospitality (karam), especially amongst the desert Arabs in the time before Islam; he moves on to a discussion of the nature and sources of the concept of asylum under Islam, the Islamic world’s approach to asylum and tolerance, and asylum in contemporary times in the Middle East. His conclusion is that ‘the right of asylum forms part of the spiritual, moral, political and legal heritage of the Arabs and the Muslims bequeathed to them by their ancestors …’(pp 49-50). Arnaout’s work can be regarded as foundational in that he provides an alternative to the Refugee Convention’s conceptualisation of the rights of the refugee, one that looks to a historical, cultural and religious legacies, and which clarifies that ‘by reason of the sacred nature of asylum, its breach constitutes a challenge to the will of God. The result is that asylum constitutes both a subjective right of the individual and an obligation of the community’ (p 32).
Arnaout is followed by several other scholars publishing in English on the Arab world, Islam, asylum and human rights. Of particular note is Khadija Elmadmad, a Moroccan Professor of Law, who led the way in the early 1990s when writing on Arab and Islamic approaches to forced displacement, and whose work is still influential for refugee lawyers studying the Middle East. Since then, various contributions have been made, including a special issue on ‘Asylum and Islam’ in the Refugee Studies Quarterly in 2008 and a Forced Migration Review in 2009 on ‘Islam, human rights and displacement’. Ahmed Abou-El-Wafa’s 2009 text, The Right to Asylum between Islamic Shari’ah and International Refugee Law – A Comparative Study, is the most detailed publication to date on the comparison of principles of international law and Islamic Shari’ah concerning treatment of the refugee. In his foreword, then UN High Commissioner for Refugees, António Guterres, acknowledges ‘[t]he deeply rooted Arabic traditions and customs [that] have, for a very long time, served as a solid foundation for protecting human beings and preserving their dignity. Notions such as “istijara” (plea for protection), “ijara” (granting protection), “iwaa” (sheltering) and others are variations on the concept of “protection” which is the heart of the mandate conferred on the United Nations High Commissioner for Refugees’.
Such acknowledgement was significant since it recognises that alternatives to legal protection as set out in the Refugee Convention are relevant and important. At the time, the UNHCR was deeply conscious of the fact that – despite decades of repeated requests – many states hosting large numbers of refugees in Islamic states were not willing to accede to the Convention, preferring a mix of non-binding/binding international and regional instruments, and domestic laws controlling foreigners and labour migration. There is a regional dimension to accession with the Organisation of Islamic Co-operation (OIC) countries of Africa generally acceding to the Refugee Convention and the OAU Convention governing the Specific Aspects of Refugee Problems in Africa, 1969, while others in South Asia and the Middle East remain intransigent: of 57 OIC Member States, 36 are signatories to the Refugee Convention.
Amongst the laws and policies–both “soft” and “hard”–to which Islamic countries have ostensibly been willing to adhere are the 1966 Bangkok Principles on the Status and Treatment of Refugees (revised 2001); the Universal Islamic Declaration of Human Rights 1981 that is based on the Qur’an and the Sunnah; and the revised Cairo Declaration on Human Rights in Islam 2021 (OIC), which sought to address many of the criticisms of its predecessor of 1990. Turning to Arab states, they have addressed many refugee issues in regional laws such as the Arab Convention on Regulating Status of Refugees in the Arab Countries 1994 (League of Arab States (LAS)); the Arab Charter on Human Rights 2004; the draft revised Arab Convention on Regulating Status of Refugees in the Arab Countries 2018 (LAS); and the Protocol for the Treatment of Palestinians in Arab States (“Casablanca Protocol”) 1965. However, while there is clearly a willingness to draft international laws, this is not met with an equivalent desire to enforce or implement such laws. Thus, for example, the 1994 Arab Convention is not in force, while the draft revised 2018 Convention has not yet been adopted (due in part to Jordan’s expressed reservation about the wide definition of “refugee” contained in Article B(3).
Notwithstanding the rather mixed picture at the international and regional levels, it is arguable that we stand at an important juncture in the approach to refugee matters in Islamic countries with the increasing emphasis on–and wide acceptance of–custom (hospitality/karam) and religious principle (hijrah and aman) combined with growing reliance on domestic laws and policies in both party and non-party countries. Consequently, by way of example, Turkey, which is party to the Refugee Convention but famously applies the geographical limitation to European refugees only, introduced a Law on Foreigners and International Protection in 2013 (and accompanying 2016 Regulation No 29656 on the Implementation of the Law on Foreigners and International Protection) to handle the inward migration of Syrians; Morocco, also a Convention state party, following the lead set out in the ground-breaking 2014 National Strategy on Immigration and Asylum, drafted an Asylum Law, Law No. 66/17, setting out the criteria for granting asylum and the associated rights, but the Law has been postponed, unfortunately; Qatar became the first Gulf State to pass asylum legislation in 2018 (Law No. 11/2018), which defines a refugee as a “political asylee” and affords those granted asylum rights to travel documentation, work, worship, access to courts, health care, education and housing; and Pakistan’s refugee policy revolves around its 1993 Cooperation Agreement with UNHCR, administrative measures, visa and immigration laws, and specific strategies, such as Solutions Strategy for Afghan Refugees. Like Morocco, it too drafted a national refugee law in 2013, but this was not adopted.
With these examples in mind, it would seem that there are at least five possibilities of how the right to asylum might develop in future in Islamic countries:
(1) the current state-centric approach continues with a wide range of varied policies applied, many immigration law-focused, creating differing “protection” regimes and uncertainty for individuals;
(2) states commit to the implementation and application of a legal normative framework for asylum seekers and refugees, either through binding international refugee law instruments (the Refugee Convention/Protocol); regional instruments (Arab Convention; OAU Convention); or both;
(3) states develop and adopt domestic asylum and refugee laws that meet international human rights standards and provide protection to vulnerable populations;
(4) states develop a protection framework that is rooted in the Islamic values of both host states and forced migration populations (through law or though agreed approach);
(5) a combination of some of the above.
Arguably, as shown here, there is evidence to suggest that some countries are shifting away from the status quo outlined in point 1 above and are now willing to countenance domestic laws and policies that accept basic refugee law concepts and rights, while applying principles of aid, hospitality, humanitarianism and non-refoulement, as practised over centuries through culture or Islam. Perhaps the recent advancement of post-colonial studies of forced migration, the recognition in the Global North of the enormous efforts of hosting countries, and the realisation that refugee-protection norms do not rest solely in international refugee law are together facilitating the introduction of new and significant protection mechanisms throughout the Arab and Islamic World, grounded in law, culture and religion.
This blog post was originally published on the Refugee Law Initiative blog.