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