This article written by Roshni Shanker and Vasudha Reddy originally appeared in Outlook Online, and can be accessed here.
Earlier this week, India joined the list of countries that have denied asylum to Edward Snowden, the former National Security Agency consultant, stating that it sees no reason to accede to the request. The decision comes only a few months after Antonio Guterres, United Nations High Commissioner for Refugees, lauded India’s liberal approach to refugees and hailed it as an example for the rest if the world to follow. Despite not being a signatory to the 1951 Convention Relating to the Status of Refugees (“the 1951 Convention”) and its 1967 Protocol, India has over the years adopted a generous and compassionate approach towards asylum-seekers and has provided direct assistance to some 200,000 refugees from different countries. In fact, in the past India has extended asylum to some of the most controversial figures in history such as the Dalai Lama, Sri Lankan Tamil leaders, Aung San Suu Kyi’s political associates etc. Thus, the refusal of Snowden’s asylum request has ignited a furious debate on the law and politics underlying the issue. Many believe that turning a blind eye to the US government’s relentless pursuit of Snowden and denying him the right to asylum is a violation of fundamental human rights principles. However, others classify Snowden as a criminal and hold that a State has the prerogative to determine who they want to grant asylum. The debate has brought to light a number of legal issues, where the arguments of both sides merit consideration.
The right to asylum under international law is governed by the 1951 Convention. This is the key legal document which defines who a refugee is and enumerates his/her rights as well as the obligations of signatories. Certain tenets under the 1951 Convention have attained the status of customary international law, i.e. principles of international law which all countries have to adhere to irrespective of whether they have signed a specific convention or not. The most crucial of these is the principle of non-refoulément which places an obligation on States to not return refugees to countries where they face a serious threat to their lives or safety. Therefore, before denying an asylum request, States need to consider if the asylum-seeker qualifies as a refugee under law. Under Article 1 of the 1951 Convention, a person is considered to be a refugee if he has a well-founded fear of persecution owing to his race, religion, nationality, membership in a social group or political opinion.
The first consideration is whether the asylum-seeker’s fear of returning to his/her country is reasonable and justified i.e. “well-founded”. To determine this in the present case, one needs to examine how the US has treated others tried for similar offences. Given that Snowden has been charged by the US courts with espionage and leaking confidential information, his passport has been revoked and arrest warrants have been issued, the likelihood of him facing serious consequences for his actions is obvious. His fear of returning to the US is thus, well-founded.
The next question is whether the consequences Snowden is likely to face would amount to persecution. “Persecution” refers to serious violations of human rights such as torture, cruel or inhuman treatment or punishment. It is to be differentiated from “prosecution” where a person is brought to trial in accordance with due process of law. This is where opinion differs on Snowden. His opponents argue that if he is returned to the US, he will be given a fair trial with legal representation, as other similarly charged persons have been. Some also contend that he could have exercised his constitutional right to freedom of speech without breaking the law and therefore, he should be treated as a fugitive from justice. His supporters contend that as a whistle-blower, Snowden could not have used State mechanisms to expose State wrongdoing and point to the case of Bradley Manning, who has been subject to torture and severe ill-treatment while in detention, as confirmed by the United Nations Rapporteur. Therefore they believe that the consequences Snowden is likely to face would go beyond “prosecution” to “persecution”.
Finally, if it is determined that Snowden is likely to face persecution, then a nexus needs to be established with one of the five grounds under the 1951 Convention. Given the facts, Snowden can claim that he is either being targeted for his political opinion or his membership of a particular social group, in this case whistle-blowers. This is also under debate. Some believe that his actions do not amount to a mere expression of political belief but have jeopardized national security and diplomatic relations and for the same reason, he should not be regarded as a whistle-blower but as a spy. The contrasting opinion is that in exposing the imbalance of power between the State and its citizens he has expressed a political opinion against the extent of State surveillance, which also makes him a whistle-blower.
Even if Snowden qualifies as a refugee as per the said criteria, Article 1F(b) of the 1951 Convention denies protection to persons who have been convicted of serious non-political crimes. Here too opinion is divided on the nature of his actions, with those who believe that it was clearly political and others who view it as more criminal than political (thereby amounting to a serious non-political crime).
Had Snowden been physically present on Indian soil, the government would have been automatically bound to grant him asylum if the aforementioned criteria were met. However, since he has been making requests for asylum to various countries without being present there, and the 1951 Convention is silent on the subject of physical presence as a precondition for claiming asylum, States have been responding in various ways. While some States have required his physical presence to even consider his claim, India has considered and rejected it, suggesting that physical presence is not required. Due to the lack of binding international standards, States typically rely on their domestic asylum framework and established principles of international law. For example, the European Union has a common asylum framework which sets out a uniform procedure for handling asylum claims.
It is clear that Snowden’s quest for asylum has thrown up many complex legal issues. The determination of his legal status cannot be resolved easily and warrants extensive legal analysis. External Affairs Minister Salman Khurshid, has stated that India has a “very careful and restrictive [asylum] policy”, which Snowden presumably did not conform to. However, India has never had a domestic legal framework for extending asylum. Further, India’s unequivocal denial of the asylum request within a day of it being made raises concerns over India’s political will overriding principled considerations and over whether the request was properly assessed under international law. In the absence of a clear domestic framework for extending asylum, decisions such as that taken on the Snowden case give the impression of the process being ad-hoc and arbitrary, thereby underscoring the urgent need for such a framework.
Roshni Shanker & Vasudha Reddy run a refugee legal aid centre in New Delhi called Ara Legal Initiative and were formerly UNHCR lawyers. They can be contacted at office AT araleagl DOT in