Criminalizing the Human Right to Asylum

The Universal Declaration of Human Rights was approved without opposition by the U.N. General Assembly on Dec. 10, 1948 as Resolution 217 (III). Eight states abstained: the Soviet Union and Eastern bloc countries, Saudi Arabia and apartheid South Africa. All of the Western nations voted in favor of it, with the U.S. leading them all.

Not surprisingly, the drafting committee responsible for producing the first declaration bill was headed by Eleanor Roosevelt, the widow of Franklin D. Roosevelt. Article 14 of this declaration stipulates that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” There remains no doubt that asylum is an essential human right.

Edward Snowden’s case has rekindled the topic of territorial asylum, so dreadfully common in the 20th century as a result of two world wars that gave rise to the Geneva Convention on Refugees of 1951. According to said convention, a refugee is a 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.”

Edward Snowden’s situation is a perfect example of a refugee case, according to how it was defined in 1951 and as demonstrated by the disgraceful humiliation suffered by Bolivian president Evo Morales Ayma. Despite the international laws of sovereign immunity and rights of passage for heads of state, President Morales suffered the effects of the hunt for Snowden that was ordered by the U.S. It was his supposed presence on the Bolivian presidential airplane that caused the closure of airspace on the part of three European countries. This act demonstrated that Snowden is a person who is pursued by his country of nationality.

The United States government alleges that Snowden’s actions, revealing that the U.S. has assembled a worldwide spying network against almost everybody, constitute a common crime according to that nation’s laws and therefore he can only travel to the U.S. The United States’ claim criminalizes and attacks head-on the human right to asylum according to how it’s been defined by all the treaties and declarations that regulate it.

The U.S. and its allies intentionally forget that the essential basis of territorial asylum is the persecution that a person suffers. If no such persecution exists, there is no reason to invoke asylum or refuge. That the crime from which such persecution originates is common is irrelevant if the commission of such a crime is motivated by political reasons. The political element is inherent to asylum or to territorial or diplomatic refuge. The only exception is the existence of international crimes that cannot be subject to asylum.

Both asylum and territorial refuge assume that a crime has been committed according to the laws of the pursuing nation, with the singularity that the crime is strictly political (such as a military rebellion, as pointed out by the International Court of Justice in 1950) or is a common crime committed for political reasons. And it is the commission of this political crime, or of one motivated for political reasons, that justifies the granting of asylum.

Another issue to point out is that the granting of asylum or refuge is a sovereign right of nations. Since the 1933 Montevideo Convention on Political Asylum, such rights have become indisputable. Especially noteworthy are Articles Two — “The judgment of political delinquency concerns the State which offers asylum” — and Three — “Political asylum, as an institution of humanitarian character, is not subject to reciprocity. Any man may resort to its protection, whatever his nationality” — of the convention.

The 1954 Caracas Convention on Territorial Asylum expresses itself along the same lines. Article One says that “Every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without, through the exercise of this right, giving rise to complaint by any other State.”