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North Carolina Journal of International Law and Commercial Regulation

The Curious Case of Edward Snowden

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During the summer of 2013, the world was captivated by the story of National Security Agency whistleblower Edward Snowden.[1] Currently living in Moscow on a temporary grant of asylum,[2] Snowden has charged the Obama Administration with two related violations of international law: (1) that it interfered with his right to seek asylum; and (2) that by revoking his passport, it had made him stateless.[3]

First, Snowden charges that the United States has interfered with his right to seek asylum. A Wikileaks statement on Snowden’s behalf claimed that the United States violated U.N. Resolution 2312[4] by grounding the airplane of Bolivian President Evo Morales and threatening other nations considering Snowden’s asylum requests.[5]

Article 14 of the Universal Declaration of Human Rights gives all people “the right to seek and to enjoy in other countries asylum from persecution.”[6] However, the right “may not be invoked in the case of prosecutions genuinely arising from non-political crimes.”[7] UN Resolution 2312 is similarly limited “to persons entitled to invoke article 14.”[8]

As a result, this alleged violation of international law turns on the characterization of Snowden’s actions. Was he committing a political crime by leaking classified information? Or, as President Obama charges, is he simply an American charged with committing multiple felonies rather than a “patriot”? [9]

Second, Snowden also argues that the government has made him stateless[10] by revoking his passport.[11] Although some have argued that the revocation of Snowden’s passport is itself interference with his right to seek asylum,[12] the Department of State does have the authority to revoke passports if the holder is “the subject of an outstanding Federal warrant of arrest for a felony.”[13] But is Snowden stateless without a valid passport?

The Universal Declaration of Human Rights gives all people the right to a nationality and prohibits the arbitrary deprivation of that nationality.[14] De jure statelessness refers to an individual who has no nationality or citizenship.[15] However, both common sense and the State Department[16] confirm that Snowden remains an American citizen even if he has no valid passport. De facto statelessness occurs when one’s country refuses to allow him to return home.[17] It is hard to imagine that Snowden would be prevented from returning to the United States because his passport has been revoked. Rather, like Melville’s Bartleby the Scrivener, it seems that he would simply prefer not to.[18]

For now, however, while governments debate the nature of his crimes, Snowden remains in Moscow, reading Dostoevsky and enjoying some measure of freedom while considering a permanent solution to his legal limbo.[19]


[1] http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance;

[2] http://www.washingtonpost.com/world/europe/snowden-leaves-moscow-airport-to-live-in-russia/2013/08/01/2f2d1aba-faa9-11e2-a369-d1954abcb7e3_story.html

[3] Statement from Edward Snowden in Moscow, July 1, 2013, http://wikileaks.org/Statement-from-Edward-Snowden-in.html

[4] http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/236/47/IMG/NR023647.pdf?OpenElement (no longer accessible)

[5] Statement on Snowden’s Successful Russian Asylum Bid, August 1, 2013, http://wikileaks.org/Statement-on-Snowden-s-Successful.html. Other organizations have similarly claimed that extradition efforts by the United States have violated international law (See https://www.aclu.org/blog/human-rights-national-security/us-actions-snowden-case-threaten-right-seek-asylum; http://www.amnesty.ie/news/media-mwo-eca-news-usa-must-not-persecute-whistleblower-edward-snowden)

[6] http://www.un.org/en/documents/udhr/index.shtml

[7] http://www.un.org/en/documents/udhr/index.shtml

[8] http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/236/47/IMG/NR023647.pdf?OpenElement

[9] http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-press-conference. See also http://www.whitehouse.gov/photos-and-video/video/2013/07/12/press-briefing#transcript (White House Spokesman Jay Carney said that Snowden had been charged with violating American law and thus should be returned to the United States)

[10] See generally http://www.unhcr.org/4cb2fe326.html. The unique tragedy of stateless individuals has been often dramatized in book or film. See, e.g., The Terminal (Tom Hanks’ character Viktor Navorski is unable to leave airport because his country is no longer recognized as sovereign); Atoll K (Stan Laurel and Oliver Hardy are unable to help stateless Antoine come ashore because he lacks a passport).

[11] http://bigstory.ap.org/article/ap-source-nsa-leaker-snowdens-passport-revoked.

[12] https://www.aclu.org/blog/human-rights-national-security/us-actions-snowden-case-threaten-right-seek-asylum

[13] http://www.uscis.gov/ilink/docView/22CFR/HTML/22CFR/0-0-0-1/0-0-0-2898/0-0-0-3335.html (no longer available)

[14] http://www.un.org/en/documents/udhr/

[15] http://www.unhcr.org/pages/49c3646c158.html

[16] http://bigstory.ap.org/article/ap-source-nsa-leaker-snowdens-passport-revoked

[17] http://www.unhcr.org/pages/49c3646c158.html

[18] See Herman Melville, Bartleby the Scrivener, http://www.bartleby.com/129/.

[19] http://www.google.com/hostednews/afp/article/ALeqM5ihnNR3lkwIuJQR2eOkyATFXEUA1w?docId=CNG.e75faaa2f6df50bdfa970b26510033e2.3b1 (no longer available)


Posted by Christian Howard Brill on Wed. December 4, 2013 8:00 AM
Categories: International Human Rights

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