NSA leaker Edward Snowden appears to be a lot of things: brave, well spoken and a committed proponent of civil disobedience. But one thing he almost certainly is not is a refugee. Snowden landed Sunday in Russia from Hong Kong, where the U.S. was seeking his extradition on espionage charges. Ecuador’s Foreign Minister, Ricardo Patiño, subsequently announced via Twitter that Snowden had requested asylum in the impoverished South American country.
Here’s how the governing piece of international law, the U.N. Convention Relating to the Status of Refugees as amended in 1967 [PDF], defines a refugee: any person who
… owing to 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 … or is unwilling to return to it.
The convention further explicitly defines someone who is not a refugee as:
… any person with respect to whom there are serious reasons for considering that … he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
Most of the countries in the world have signed the treaty or its 1967 amendment, including the U.S., China, Russia and Ecuador. (Hong Kong hasn’t, and China hasn’t required it to abide by the convention since it took control of the territory, but that’s moot now that Snowden’s in Russia.)
So for Snowden to be a refugee with a valid claim to asylum he would have to argue two things. First, he’d have to show that he has a well-founded fear of persecution based on his political opinion. Second, he’d have to show that the crime he has admitted to, namely leaking highly classified documents, is either nonserious or political.
That’s a tall order on all counts. Snowden isn’t being persecuted for holding a political opinion, he’s being prosecuted for violating U.S. law. Few countries in the world, if any, have greater protections for freedom of expression of political beliefs than the U.S. (Germany bans public espousal of Nazism, Russia criminalizes offenses to various public figures, Ecuador just passed a restrictive press law, and so on.) If Snowden wanted to express his opinion about the surveillance state he could do so with near absolute protection under the First Amendment.
But even he says that’s not what he’s doing. Which gets to the second hurdle he has to clear. Snowden has admitted to breaking the law and said he is performing serious civil disobedience. In his first interview after coming forward as the source of the documents exposing the NSA’s broad surveillance programs, he said of his actions, “When you are subverting the power of government that’s a fundamentally dangerous thing to democracy.”
That was a particularly impressive and well-thought-out statement, but it also appears to be a stark admission that he is committing the kind of serious crime that denies him the protection of a refugee.
To understand exactly why that is, it helps to focus on those for whom the international protections of asylum were originally created. Sometimes individual dissidents are granted asylum for their membership in a political group that is being persecuted — there have been landmark cases in the U.S. for victims of genital mutilation and of persecution on the basis of sexual orientation.
But the convention was created to help defenseless people forced across borders by conflict, specifically World War II. They are often rendered stateless and helpless in the process and can’t safely return home. Under the convention, states granting asylum are doing so to give them the protections that often only a state can in times of war — shelter, security from criminal activity or exploitation and so on.
Different countries do that to different degrees when they face an influx of miserable, destitute people fleeing a conflict. One place that does it increasingly poorly is Ecuador. Bordering Colombia and Peru, it has faced a high rate of asylum seekers. The U.N. High Commissioner for Refugees (UNHCR) recently said that in Ecuador “access to asylum has become difficult” thanks to the passage recently of a government directive that makes it harder for Colombians and others to get a fair hearing on their refugee status, and nearly impossible for them to appeal if they’re denied.
So Ecuador may be an attractive place to seek asylum for people claiming a novel kind of political persecution, like Snowden or Julian Assange, who has spent a year in the Ecuadorean embassy in London in hopes of avoiding extradition to Sweden to face rape charges. But it is not a particularly safe place to go if you are, say, an Afro-Colombian fleeing fighting in the south of that country.
All that said, the U.N. convention is silent on how someone is given the status of a refugee. Many countries say the first safe country arrived at should determine the validity of the claim, rather than having asylum seekers shop around for a country that will take him or her.
The UNHCR urges countries to presume an asylum claim is valid until the would-be refugee is shown not to be in danger. Whenever he gets a final hearing on his claim, says Jana Mason of the UNHCR’s Washington office, the issue “will be determining whether he’s subject to persecution or legitimate prosecution.”