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25 Brit. Y.B. Int'l L. 236 (1948)
Extra-Territorial Asylum

handle is hein.journals/byrint25 and id is 242 raw text is: 'EXTRA-TERRITORIAL' ASYLUM By FELICE MORGENSTERN, B.A. Whewell Scholar of International Law in the University of Cambridge THE term ' extra-territorial asylum' is here used to indicate asylum given within the territory of the state from which refuge is sought. It refers to asylum in legations and consulates, and on warships and merchantmen in the ports of the state from which the individual seeking refuge is trying to escape. In this respect it differs from 'territorial' asylum, which is granted within the territory of the state which gives it. Extra-territorial asylum takes place in derogation of the territorial sovereignty of the state where it is granted., For it limits the latter's juAsdiction over all individuals on its territory, a jurisdiction which is by international law an essential attribute of state sovereignty. It is, therefore, not a practice which can be lightly followed; its legal basis must be clearly established. For it is a general principle of law that rights claimed in derogation of normal rules of inter- national law must be clearly proved.2 The United States, in particular, have insisted on that principle. Thus, in a letter to the Ambassador in Chile in January 1925, Mr. Hughes, Secretary of State, wrote: 'A sovereign state enjoys the exclusive right to control and administer justice within its territory.... Because the granting of shelter is oftentimes ... accorded with a view to withholding an individual from that jurisdiction, such action cannot be regarded with favour, except in very exceptional circumstances.'3 The main problem inherent in this aspect of asylum lies in the difficulty of reconciling the conflicting claims of humanitarianism and of state sovereignty. Such a reconciliation can be achieved within the framework either of the law of diplomatic immunities or of an independent rule of international law, whether conventional or customary. I. Basis of asylum x. Asylum in legations (a) Exterritoriality. With regard to legations a basis for asylum might be found in the principle of the exterritoriality of legations which, it is claimed, means that the official residence of the diplomatic representative is excluded Cf. a speech by M. Negrin, then Spanish Premier, before the Spanish Cortes on i October 1937, where he stressed that diplomatic asylum affected Spanish sovereignty, and that disputes concerning it were not within the province of the Council of the League of Nations, to which the matter had been referred by Chile. The Times newspaper, 2 October 1937, P. I I. 2 Cf. the advisory opinion of the Permanent Court of International Justice in the case of Access of Polish War-vessels to the Port of Danzig (Publications of the Court, Series A/B, No. 43, p. 142). 1 United States Foreign Relation Reports, x925, vol. i, p. 584.

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