Critical Analysis: Does Snowden have a “Right to Asylum?”

Edward Snowden has become America’s newest celebrity.  The former National Security Agency employee has been charged with espionage by the United States after leaking top secret documents on U.S. surveillance program PRISM.   Snowden left Hong Kong in late June, looking for a safe haven, arriving in Moscow’s Sheremetyevo Airport on June 23.  Since then, he has asked twenty-six countries for asylum and gotten a positive reply from only three: Nicaragua, Bolivia and VenezuelaIn a letter released July 1 by Wikileaks, Snowden blames the leadership of the United States:

“For decades the United States of America has been one of the strongest defenders of the human right to seek asylum.  Sadly, this right, laid out and voted for by the U.S. in Article 14 of the Universal Declaration of Human Rights, is now being rejected by the current government of my country. . . . Without any judicial order, the administration now seeks to stop me exercising a basic right.  A right that belongs to everybody.  The right to seek asylum.”

Snowden’s words in this letter may be powerful, but are they correct?  Does he, and everyone else, have a right to seek asylum?  And even if he has a right to seek it, does he have an automatic right to receive asylum?

The “right of asylum,” sometimes called “political asylum” is embodied in Article 14 of the Universal Declaration of Human Rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”  Even though the wording of the article itself says people have the right to enjoy asylum from persecution, this is generally considered just to grant a right to apply and not an absolute right to receive asylum.  A basic “legal benchmark” that asylum-seekers must meet is having “a well-founded fear of persecution in their home country due to race, religion, nationality, membership in a particular social group or political opinion.”  Without one of these qualifications, an asylum-seeker is unlikely to enjoy asylum in another country.

Later, United Nations Conventions further explained what the right to seek asylum embodies.  Provision F of the U.N.’s 1951 Convention Relating to the Status of Refugees clarifies that the rights of an asylum seeker do not apply to people who have committed serious non-political crimes.  Generally, violent crimes or crimes in which “the seriousness of the criminal act outweighs the political aspect of the conduct,” are considered non-political.  Those who have committed such crimes have committed non-political acts and are not protected by the right of asylum.

Snowden in an interview

Snowden certainly hopes there is a right to asylum (The Guardian)

So what do these international laws mean for Snowden?  Certainly, Snowden has the right to seek asylum, but he may have trouble meeting the basic legal requirements that would grant him the right to receive asylum.  First, he must need a fear of legitimate persecution based on membership in a particular social group or political opinion.  However, if he is being prosecuted for the leaks themselves rather than persecuted for the social beliefs that drove him to leak the information, he may have trouble arguing persecution.  Although leaking information is not necessarily a violent crime, various states could decide that he is being hunted for that non-political crime, negating his qualification for asylum.  Snowden’s best argument is that he is a member of a persecuted social group – the social group of whistleblowers.  To succeed in this claim, though, Snowden has to find a country that considers “whistleblowers” a protected class. And although Nicaragua, Bolivia and Venezuela have tentatively offered him asylum, he has one more hurdle: getting there.  Many of the other states that Snowden has written in his quest for asylum require an asylum-seeker to be on national soil – whether that be in the country or in an embassy.  In the transit zone of the Sheremetyevo Airport, Snowden is not on the soil of any of these places. Coupled with not having a valid passport, his traveling options are limited.

The world continues to watch as state after state refuses Snowden’s asylum request, narrowing the options for the whistleblower.  If Snowden stopped releasing information on the NSA, Russia might be willing to take him in, but is not willing to do so if he continues with his criminal activity.  Stopping the leaks would solidify Snowden as a political refugee, persecuted for what he’s done, but allowing Snowden in while he continues in allegedly criminal activity would make his actions more criminal than political, weakening his status as an asylum-seeker.  Snowden originally thought he had a friend in Ecuador, who has granted political asylum to Wikileaks founder Julian Assange, but Ecuador’s official stance (after a conversation between United States Vice President and Ecudaor’s President Rafael Correa) is that Snowden must make his way to Ecuadorean soil before his application for asylum can even be considered.  Snowden’s next hope looks like Venezuela, but President Nicolas Maduro claimed on July 2 that he had not even received Snowden’s request yet.  Perhaps it will be the state that determines either that whistleblowers are protected or that Snowden’s actions were more political than criminal, but if it does not, Snowden’s rights have not been violated.  His right to seek asylum has been fulfilled.  Whether he gets to enjoy asylum depends on whether any states think that he has been persecuted – and are willing to step up and say so internationally.

Samantha Peaslee is a rising 2L and Managing Editor for the Denver Journal of International Law and Policy.

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