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Finally,
at the end of July 2013, Russia
offered Snowden asylum for a year.
That was appropriate, and under
international law should not be
considered a hostile act. Snowden
had released US secret documentation
about US internet information
tapping which revealed a broad scope
of snooping even on supposed
European allies of the US. He fled
to Hong Kong and then, when the US
tried to have him extradited, he
flew on to Russia but ended up
trapped in the airport in Moscow
when the US ended his passport. The
Snowden affair reminds us that there
is a useful wider right to asylum as
well as the more familiar refugee
status which offers a form of
asylum. In the Americas the wider
right is part of the Inter-American
human rights system. The “right to
seek and receive asylum in foreign
territory, in accordance with the
laws of each country and with
international agreements” has been
at issue in Canadian and other cases
before the Inter-American Commission
on Human Rights. Buried
in the July mailing of the
International Civil Liberties
Monitoring Group is an article by
law Professor Robert Falk about
international law and asylum. Falk
makes the case that Snowden’s
actions were politically motivated
and not crimes for personal wealth.
Political crimes are not covered by
the international criminal accords
which require States to hand over
criminals under extradition
treaties. “I had
thought it was as clear as law can
be that any person who has committed
a political crime should be
exempted from mandatory extradition
even if a treaty existed imposed a
duty on its parties to hand over
individuals accused of serious
criminal activity. To be sure, from
the perspective of the United States
government, Snowden's exposure of
the PRISM surveillance program was a
flagrant violation of the Espionage
Act. But it was also as clearly a
political crime as almost any
undertaking can be. There was no
violence involved or threatened, and
no person can be harmed by the
disclosures.” Falk
believed Snowden would best be
characterized as a whistle
blower. International law
would allow Snowden to remain or
qualify for asylum under some
nation’s laws – the US huffing and
puffing notwithstanding. The
efforts of the US to bring Snowden
to the US for the crime under US law
included having US allies in Europe
bring down a plane carrying the
Bolivian president because Snowden
might have been on board. He was
not! This
grounding of an international flight
seems to have encouraged other
countries in the Americas to offer
asylum likely in part because the US
actions revealed a possibility of at
least some forms of "persecution" if
Snowden were to be returned. Underneath
the
talk of asylum is the secretive
personal data collection which
Snowden revealed by his
political action.
Most of the international
case law on the right to privacy
is from the European Court of
Human Rights under article 8 of
the European Convention on Human
Rights and Fundamental Freedoms.
The basic case law stems from an
earlier time and covers prisoner
correspondence, phone tapping
and the like. The principles are
clear but they may need an
update for the internet era
under the European Convention on
Human Rights, under the
Inter-American system and under
the UN system.
In broad
terms, there can be limits on the
right to privacy permitting such
things as wiretapping. But the
limits must be set out in the law
and must be clear. They must be
necessary in a democratic society
and they must be proportionate.
People must be able to know under
what circumstances they may face
phone tapping and the like. In
the 1970s and 80s when the case law
began with a backdrop of IRA bomb
attacks in the UK, laws usually
required a judge to authorise the
wiretapping. The
scope and covert nature of the data
collection as revealed by Snowden
could amount to a violation of
international rights to privacy of
the large number of individuals
involved. So Snowden's activity
might be construed as enabling the
US to come to terms with its human
rights treaty obligations. Promoting
international human rights is not
considered criminal activity. In early
August, almost as if in response to
Snowden’s leaked extent of the
electronic snooping, the
US and its allies closed diplomatic
missions embassies in the Middle
East pointing to electronic
conversations overheard between
Al-Qaeda leadership. Canada closed
the embassy in Bangladesh. It
seemed as if people were deemed to
need dramatic measures to convince
them that wiretapping might be
appropriate in some circumstances. Little
hard information about the terrorist
threat was provided beyond the
closing of diplomatic missions.
Smoke and mirrors are not enough to
justify the broad electronic spying
which has been exposed. Is
Snowden
a refugee? Refugee status is related
to asylum but it is a distinctly
defined UN status with a test
requiring a well-founded fear of
persecution. When
death or torture would result from
the return of a person, that
qualifies. The US is known to have
the death penalty and is known to
commit torture in its Guantanamo
site in Cuba, but one would need to
show Snowden has a serious
possibility of these. The US told
Russia these would not be involved
if Snowden was handed over and I
suspect the evidence would indicate
that the US would likely comply. However,
in the present climate, Snowden is
unlikely to face a trial in which
the wider value of his actions and
the questionable legality of the
anti-privacy activities he exposed
could be taken into account. Unfair
trial with jail seems a possibility
from the few facts made public. Time
in jail is deprivation of freedom.
Also, discriminations like access to
work which might add up to
persecution seem probable. Even if
Snowden cannot match the refugee
status definition, an offer of
asylum under national law and
international agreements seems
appropriate. Under
international law an offer of asylum
is not to be considered as a hostile
act and given a variety of offers of
asylum, it would be difficult to
construe any one of them as a
particularly hostile gesture. The US itself has
agreed in principle to grant a
right to seek asylum in other
countries by signing the
Inter-American human rights
instruments. Since
this right is at issue in the
Snowden case, the US is acting so
as to undermine Snowden's right. So
the possible violation of this
right of Snowden’s by the US and
the possible violation of the
right to privacy of countless
Americans and others by the US
PRISM project as shown by
Snowden’s whistle blow might in
theory be raised as human rights
complaints before the
Inter-American Commission on human
rights by any government, person
or NGO in the Americas.
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