According to rec
ent news reports, Edward Snowden, the whistleblower who leaked documents revealing the scope of the National Security Agency’s surveillance program, has applied for political asylum in at least twenty-one countries. Though his applications have not been made public, Snowden has received at least three offers of asylum: from Bolivia, Nicaragua, and Venezuela. The proffered grounds for these asylum grants have varied from Bolivian President Evo Morales, who presented it as a “fair protest” for preventing his presidential airplane from entering the airspace of several European countries; to Venezuelan President Nicolas Maduro, who saw a need to protect “the young American” against “persecution from the empire“; to Nicaraguan President Daniel Ortega, who remained vague on the details.
None of these explanations bears much relation to international refugee law, which, though rarely an arm’s length from politics, does require some rigorous legal analysis. To be fair, each country has the right to grant asylum based on their own domestic law, which may be more generous than international refugee law standards. (Though the terms “asylum” and “refugee status” are often used interchangeably, in the United States, the former technically refers to domestic law and the latter to international law.) But given the legitimacy that the international legal standards might afford a claim like Snowden’s, it’s worth attempting a more thorough analysis of his asylum claim.
The 1951 United Nations Convention Relating to the Status of Refugees defines a refugee as a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Snowden might fit within the “political opinion” category or a “particular social group” of whistleblowers. The central question is whether he risks persecution at the hands of the U.S. government on account of his membership in that category. (While Snowden might argue that his prosecution is political, the argument that he engaged in civil disobedience and therefore should expect to defend himself in court is more compelling.)
The U.S. government would argue that Snowden faces prosecution for criminal actions — and that prosecution is different from persecution. But prosecution can cross the line into persecution for several reasons, including if punishment is unreasonably severe. So far, the three espionage charges filed against Snowden carry penalties of fines and up to 10 years in prison. That seems insufficient under international standards to make out a claim of persecution. It’s possible that, as Pentagon Papers leaker Daniel Ellsberg suggested, Snowden could face solitary confinement, which might meet the definition of persecution.
But what happens if, as several senators have suggested he should be, Snowden is charged with treason? I’m not an expert on the law of treason, but the important point is that treason is punishable by death. In the Soering v. United Kingdom decision, the European Court of Human Rights determined that Article 3 of the European Convention on Human Rights, which prohibits cruel, inhuman, or degrading treatment, prohibited the extradition to the United States of a German national charged with capital murder in Virginia. In other words, the risk of the death penalty could well rise to the level of persecution under international refugee law. Even though the treason case against Snowden appears weak, he may face enough of a risk to turn a weak asylum claim into a legitimate one.
(cross-posted on Concurring Opinions) (photo credit)
IntLawGrrls 
It’s important to remember in the analysis of this case, that in Latin America there are 2 institutes based on the right of asylum – refuge (based on International Refugee Law) and asylum (based on regional treaties and customs, and recognized as such by the ICJ), and that asylum is almost totally a discritionary act of States with no exclusion clauses or specific criteria to be met.
Thanks for your comment, Liliana. You’re right that there’s a whole body of regional law in Latin America both relating to asylum and refuge, but that law does actually contain a distinction between prosecution and persecution similar to that found in the international refugee law I describe in my post. I believe the regional treaties to which you refer are the Havana and Montevideo Conventions, both of which specifically exclude from asylum “persons accused or condemned for common crimes.” The ICJ’s Colombia v. Peru case, to which I also believe you refer, is largely focused on the question of who gets to decide whether Haya de la Torre’s prosecution was for political or ordinary crimes. In any case, I think the international refugee law regime is more relevant to the legitimacy of Snowden’s asylum claims. Even though asylum was extended by three Latin American countries, Snowden is currently in Russia, which is not bound by any of the Latin American conventions regarding safe passage. The ICJ of course recognized in Colombia v. Peru that the Montevideo Convention could not be invoked even against Peru, which had not ratified that treaty.
Interesting commentary.
However, if I may add, what you have described with the Soering case is coined as ‘non-refoulement’, the obligation of states not to return a person to a country where they may face inhumane/degrading treatment/punishment (3 CAT, 3 ECHR, 5 UDHR, 33 Refugee Convention, among others, and, arguably, customary international law).
Thus, should Snowden be able to prove he not only fears the death penalty resulting from a treason conviction, and/or unfair trial, or other, but also that his fear is well-founded (whatever that may mean in his case), he may benefit a halt on extradition, even where an extradition treaty is at place. So, in any event, the US may not complain about China not handing him over while he was there. Such politicized rhetoric is very annoying at times. Now that Snowden is in Russia, even if the authorities miraculously decided to extradite him, he could initiate proceedings on the national level, as did Abu Qatada.
Thanks for your comment, Sylvia. Soering does indeed discuss the principle of non-refoulement, but it’s important to note that the language of the European Convention on Human Rights’ Article 3 prohibits torture and inhuman or degrading treatment or punishment while the language of the Convention Against Torture’s Article 3 prevents refoulement to a state where there are “substantial grounds for believing” that a person would be “in danger of being subject to torture.” Though the ECtHR has interpreted ECHR Article 3 to require non-refoulement to inhuman or degrading treatment or punishment, it’s not clear that CAT’s non-refoulement protections extend beyond torture. Russia is a party to CAT but is of course not bound to the ECHR or the ECtHR’s interpretation of it.
Russia is also a party to the Refugee Convention, Article 33 of which prohibits refoulement where a person’s “life or freedom would be threatened” on account of her membership in a protected group. While Soering might help to persuade an adjudicator to interpret the Refugee Convention to prohibit return to the death penalty, I think the question of whether the death penalty is persecution or torture is, regrettably, still an open one in international law. (See, e.g., http://www.wcl.american.edu/hrbrief/20/1mendez.pdf).
I think you’re right that a treason charge would add some legitimacy to China’s refusal to hand Snowden over, even though it had not yet been charged at the time he was in China.
For an interesting parallel on the prosecution v. persecution question, see this blog post by Douglas Cox: http://www.docexblog.com/2013/07/criminal-document-disclosures-foreign.html
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