Edward Snowden and the search for asylum

The imagined threat. Edward Snowden’s asylum bid is pushing the parameters of geopolitical diplomacy and international law. See-ming Lee

Throughout the morning of July 3, Australian news media were reporting that the aircraft carrying Bolivian President Evo Morales had been forced to make an unscheduled stopover in Vienna, en route from Moscow. Websites the world over began speculating that Edward Snowden, NSA whistle-blower, was on the flight.

Bolivia’s foreign minister David Choquehuanca, reported that France and Portugal had denied air permits to Bolivia, based on the rumours of Snowden’s presence on the flight:

They say it was due to technical issues, but after getting explanations from some authorities we found that there appeared to be some unfounded suspicions that Mr Snowden was on the plane … we don’t know who invented this lie … we want to express our displeasure because this has put the president’s life at risk.

One international law foundational principle is that every state has the right to control who may enter their territory – including their airspace. As a general rule, states need permission from other states in order to transit through one another’s airspace or land, either to discharge or take passengers or for technical stops.

This applies to civil, commercial aviation, as well as to state aircraft such as military, customs or police aircraft. By denying air permits to Bolivia, the French and Portuguese have not, prima facie, acted contrary to international law – they are entitled to control access to their territory.

As it turns out, Snowden was not on President Morales airplane, just as he was not on the flight to Cuba on June 27. So, the parlour game that is “Where’s Edward Snowden?” continues. That game may be getting easier to play, as country after country has gone on the record to turn down his request for asylum.

Snowden has reputedly asked 21 countries for asylum; a number of European states such as Ireland, the Netherlands, and Spain have laws in place that only allow for asylum requests to be made within their territory – Snowden is thus unable to apply for asylum extra-territorially. Other countries such as Ecuador, India, Brazil, and Poland, have turned Snowden down after reviewing his request.

Russian President Vladimir Putin stated that Snowden would only be given asylum in Russia if he ceased “his work aimed at bringing harm” to the United States. Following Putin’s statement, Snowden withdrew his asylum request to Russia. Only Bolivia and Venezuela currently remain on the list as potential havens for the whistleblower.

Complicating the issue is, of course, the United States. US officials have demanded that other countries must co-operate with the them to bring Snowden to justice. Many countries may be justifiably reluctant to court the opprobrium of the United States by granting Snowden asylum.

Edward Snowden (pictured) has recently withdrawn his bid for asylum in Russia, leaving only Bolivia and Venezuela as current viable options. EPA/The Guardian Newspaper

That being said, it is not simply a matter of acceding to US wants. Under international law, only certain categories of crimes – like war crimes, torture, genocide and crimes against humanity – require international cooperation and obligations to prosecute or extradite. Beyond these categories, which are prescribed under treaties like the Geneva Conventions and the Rome Statute of the International Criminal Court, there is no general obligation for a country to extradite for less serious crimes.

Extradition is a matter for bi-lateral cooperation – if Australia wants to have an extradition treaty with another country, it is free to do so. It is also free to decide the treaty terms and conditions and determine what crimes warrant extradition and what crimes should be excluded.

A common feature of extradition treaties the world over is what is known as the political offences exception. This exception allows for a country to refuse to extradite a person if the crime that person is accused of is political in character. Thus, a person alleged to have committed a security offence – such as espionage – would likely be covered under the political offences exception in an extradition treaty. Therefore Snowden’s acts could fall within any country’s political offences exception if it was present in their respective extradition treaties, essentially preventing the US from getting to Snowden.

In addition to the necessity for an extradition treaty and issues raised by the concept of a political offences exception, there are a few other requirements that extradition laws generally contain. Firstly, the double criminality rule requires that the alleged crime be an offence in both the countries involved – thus, Snowden’s alleged crimes in the US must also be crimes in the country from which extradition is sought.

Furthermore, the speciality requirement must be met – a country cannot extradite someone for one crime, then lay additional charges once the person has been extradited. Finally, and perhaps most pertinent in this instance, are the human rights considerations – a person may not be extradited if they are likely to face an unfair trial, discrimination, persecution, torture or inhuman degrading treatment.

Extradition requests must also be carried out in compliance with international and domestic law requirements, generally involving judicial oversight. US treatment of whistle-blowers, such as Bradley Manning, have not set a good precedent for ensuring that Snowden would not face inhuman or degrading treatment.

The legal issues surrounding Snowden are nearly as complex as the politics at work. US President Obama has stated that he would not allow any international political “wheeling and dealing” over Snowden. That being said, the US generally does not have to explicitly make its position known to get other countries to bend to its will. The coming weeks and months promise to be interesting and challenging for the law and politics of the Snowden case.