From the moment Edward Snowden, the whistle-blower who leaked top-secret documents belonging to the United States National Security Agency, declared his identity, it was clear that the U.S. was going to doggedly seek his custody. Mr. Snowden revealed himself after fleeing to Hong Kong, which refused to extradite him because the U.S. had failed to provide the necessary information as required by Hong Kong law. Instead, Hong Kong’s authorities allowed Mr. Snowden to board a flight for Moscow — where he is currently “stuck” in the transit area of the Sheremetyevo International Airport, and has dispatched asylum requests to no less than 21 countries.
Vladimir Putin, the President of the Russian Federation, too has refused to extradite him. Extradition is a legal process by which a person, who has been accused or convicted of a crime in one country but has fled or travelled to another, is handed over to the former. Extradition is primarily regulated by bilateral agreements between states. However, there are certain general provisions which govern this process. One such rule, which finds place in many international agreements and domestic laws, is that a person will not be extradited for the alleged commission of “political” offences. Therefore, even if the U.S. has an active extradition agreement with one of the countries in which Mr. Snowden has sought asylum, he may not be extradited if that bilateral treaty exempts political crimes from its application. Whether Mr. Snowden’s actions constitute a political crime will be determined by the states — more specifically, their courts — considering his asylum request. There are certain extradition agreements that do not recognise political offences in the context of acts of terrorism. Edward Snowden has been charged by U.S. authorities with espionage and the theft of classified government documents, not for any terrorist acts. Furthermore, his actions are clearly political in nature — an argument that is strengthened by the attention, and polarising response, they have drawn from the U.S. political establishment.
The granting of asylum under international law is governed mainly by the 1951 United Nations Convention Relating to the Status of Refugees. According to the Convention, a person may be granted refugee status if he has a “well-founded fear of being persecuted for reasons of […] political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” A political act or alleged offence, which exempts a person from being extradited, will therefore also constitute the necessary legal ground for granting asylum. Mr. Snowden’s acts which are substantively political in character could certainly classify for the same.
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The U.S., according to news reports, revoked Mr. Snowden’s passport last week. For any international travel, a passport issued by a person’s state of origin or nationality is essential. The revocation of Mr. Snowden’s passport, it has been asserted, has made his onward travel from the Moscow airport transit area improbable — indeed, without a passport, he cannot clear immigration or even buy a flight ticket out of Moscow. However, this requirement cannot be strictly applied to asylum seekers. Article 31 of the U.N. Refugee Convention clearly provides that asylum seekers who gain unauthorised entry into a country shall not be penalised till their refugee status has been determined or until they get admission into another country. In Mr. Snowden’s case it is very much in accordance with international law for Russia to facilitate his stay till he receives an offer of asylum from elsewhere. If he somehow manages to secure entry into a country in which he has sought asylum, it should give due respect to the principle of non-refoulement, an established custom under international law by which an asylum seeker shall not be expelled or returned to the territory where his life or freedom are under threat.
It has been argued that some countries in which Edward Snowden has sought asylum do not have a laudable human rights record, and that their offers of asylum would be politically motivated. The granting of asylum has for long been subject to political considerations, and has been used by countries to score political points — there is nothing new in this. During the Cold War, for instance, western countries were eager to grant asylum to spies fleeing the erstwhile Soviet Union and Eastern Europe to prove they were “free societies.”
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Mr. Snowden’s request for asylum has received a lukewarm response from several nations, including India, which has rejected his application. He withdrew his plea to Russia after President Putin suggested asylum would be conditional on his plugging further leaks. Those countries which are still considering Edward Snowden’s request for asylum must recognise that his freedoms have been threatened for being a conscientious objector, and uphold his rights under international law. It is incorrect to centre the discussion on a country from which asylum has been sought, over the asylum seeker whose human rights are at stake. Equally, it is not political expediency but the protection of human rights of universal significance that should warrant asylum to Mr. Snowden.
(Srinivas Burra is an assistant professor at the Faculty of Legal Studies, South Asian University, New Delhi.)