International Law and Justice Working Papers - IILJ

that people have to fulfil.” 64 This was in accordance with the 19 th century doctrine of sources in
the international law literature. For example, the English scholar Phillimore distinguished the
divine will as the first source of international law.
In the light of the historical development, Bulmerincq held that the main problem with the
institute of asylum was this: an institute that was initially designed to protect the unjustly
persecuted persons transformed into a hindrance to the pursuit of justice and of the punishment
of evil. 65
The right to asylum was recognized in ancient Israel and developed in ancient Greece.
The State later offered the right to give asylum to the Christian Church as a privilege. 66 But the
Church, after it received this privilege from the State, did not consider it as such but rather
started to see in it a natural expression of its own rights. As the State did not recognize this kind
of thinking by the Church, a conflict evolved and the State took the Church’s right to asylum
back. The motives given by the Church, however, did not hold critic. 67
Differently from the Catholic Church, the claim of jurisdiction of the Protestants was from the
very beginning restricted. 68 At the same time, the Roman-Catholic Church claimed until the
government of the Austrian monarch Maria-Theresa its old rights. In short, the Church had
expanded its concept of asylum over time illegitimately. 69 The Popes even claimed jurisdiction
over those individuals who had violated the Church’s right to asylum. 70 Only during the 16.-18 th
centuries did the Popes recognize that the Church may not offer asylum to the perpetrators of
gravest crimes. 71
“The right to asylum in the Church was backed by capital punishment,
64 P. 160.
65 P. 7.
66 P. 73.
67 P. 75.
68 P. 82.
69 P. 84.
70 P. 94.
71 P. 103.