Snowden in Hong Kong: The Legal Complications of ‘One Country, Two Systems’

  • Share
  • Read Later
BOBBY YIP / REUTERS

Photos of Edward Snowden, a former contractor at the National Security Agency, printed on the front pages of local English- and Chinese-language newspapers in Hong Kong on June 11, 2013

An arrest warrant for Edward Snowden is very likely on the way, bringing what looks to be a complex legal tussle to the courts of Hong Kong. The city of about 7 million is a Special Administrative Region, or SAR, of China, but boasts separate courts and a good deal of legal autonomy. Nevertheless, Washington and Hong Kong maintain an extradition treaty, and a U.S. Justice Department official revealed on Tuesday that charges — possibly treason or aiding the enemy — are “under discussion.” Snowden now seems at the mercy of China’s “one country, two systems” arrangement. Here is what you need to know:

What’s the current situation?

It appears that Snowden flew into Hong Kong on May 20 and was granted the standard 90-day tourist visa for U.S.-passport holders. Therefore, he should be permitted to remain until Aug. 18, after which he will likely have to file an asylum claim or fall foul of his “condition of stay.” Snowden cannot make an asylum (technically “nonreturn”) claim until his current visa expires. However, if the U.S. files charges and an arrest warrant is issued, he would then be able to claim asylum immediately on that basis.

(VIDEO: Edward Snowden Comes Forward as NSA Whistle-Blower, Surfaces in Hong Kong)

What does an asylum claim entail?

Hong Kong offers asylum to those threatened by torture; by cruel, inhuman or degrading treatment or punishment (CIDTP); or to refugees subject to persecution. Procedures for torture claims are clearly defined in new legislation, but the second two are somewhat subject to interpretation. Until recently, the U.N. High Commissioner for Refugees solely decided refugee applications in Hong Kong. However, this was found to be insufficient and unlawful. A consequence of this is that no refugee applicants can currently be sent home because their claims are officially still pending.

Professor Simon Young, director of the Centre for Comparative and Public Law at Hong Kong University, says Hong Kong authorities will likely follow existing protocol until dedicated statutes are put in place. “Refugee-status determination focuses on the specific situation of the individual claimant,” Kelley Loper, a board member of the Hong Kong Refugee Advice Centre, tells TIME. This means that refugee claimants can come from any country, even democratic states generally considered to respect human rights.

What if the U.S. requests extradition?

Technically, Hong Kong can only “surrender” Snowden, because “extradition” takes place between sovereign states (like the People’s Republic of China). Surrender requests are made through diplomatic channels to Hong Kong’s Chief Executive, who could then ask a magistrate to issue an arrest warrant. Bail is generally only granted under special circumstances.

(MORE: Hero or Bad Boyfriend? Edward Snowden and the Personalization of Public Debate)

How could Snowden fight extradition?

There are various restrictions on the surrender of persons, like if the prosecution is deemed political. There is also double criminality: the offense must be both specified in the treaty (Article 2 regarding “offenses with computers” could apply) and must carry a penalty of at least one year in jail in both jurisdictions. Those accused of a capital crime can only be surrendered with guarantees that the death sentence will be commuted.

For torture nonreturn claims, surrender cannot be made before the torture claim has been finally determined through the procedures above. Judging by the case of Bradley Manning, whose treatment while facing similar accusations raised concerns with the U.N. torture export, this could theoretically hold water. CIDTP claims are still in limbo. “One assumes, however, that they will have the same effect as torture nonreturn claims, in which case a person cannot be surrendered while his asylum claim is still pending,” says Young.

Of course, the law is only important if it is obeyed. Libyan dissident Sami al-Saadi was placed on a secret rendition flight from Hong Kong to Tripoli in 2004, an operation that was allegedly planned and executed by the U.K., U.S. and Libyan governments. Cori Crider, a lawyer representing al-Saadi for the Reprieve legal-rights group, tells TIME that her client was simply “kidnapped” and subjected to “no process at all.” Whether this could be repeated with someone as high profile as Snowden remains to be seen.

(MORE: Last Seen in Hong Kong: Edward Snowden Slips Away)

Will Beijing become involved in this case?

New Chinese President Xi Jinping met Barack Obama for the first time last weekend, just hours before Snowden’s identity and hiding place became global news. The two superpowers are enjoying unprecedented cordial relations and will want this dilemma resolved quickly. “The body language [is] of two leaders willing to keep working with each other to avoid a downward spiral,” says Professor Zha Daojiong of Peking University’s School of International Studies.

Legally, influence may be trickier to seed. While the People’s Republic can issue instructions to the Hong Kong Chief Executive regarding “matters of defense or foreign affairs,” these cannot contradict existing statutes like the extradition treaty. In addition, Article 19 of Hong Kong’s Basic Law — the SAR’s quasi constitution — protects the independence of the judiciary from even Beijing. This means that the Chinese government should not be able to influence or interfere with asylum proceedings.

However, there could possibly be room to maneuver if Hong Kong wanted to pass on this hot potato. The Hong Kong Court of Final Appeal (the territory’s highest court) can request a reinterpretation of the Basic Law from the Standing Committee of the National People’s Congress in Beijing. Any such decision still ostensibly sits with the territory, however. So it seems that for the moment, at least, Snowden’s fate rests with Hong Kong.

— With reporting by Jennifer Cheng / Hong Kong

VIDEO: Edward Snowden: A Modern-Day Daniel Ellsberg, Except for One Key Difference

13 comments
JeffChurch
JeffChurch

Clearly, the content of this article belies its sensational title.

The content clearly indicates that there is not much complication caused by the “one country, two systems” arrangement. Hong Kong is indeed highly, and effectively on this occasion, autonomous.

Moreover, the only chance that Beijing could interfere is to proclaim that the case involves security of the entire PRC. As the content of this article suggests, such claim lacks logic and motivation from the PRC’s perspective.

The chance that Snowden will go through the Hong Kong appellant procedure for the next few years is high; the chance of he eventually getting asylum is slim.

The chance that the US will suffer more in global judgment while Snowden wades through the Hong Kong appellant procedure is high.

Noble236
Noble236 like.author.displayName 1 Like

It is only those that have something to hide are worried if you are one of them better turn a new leave. 

duduong
duduong like.author.displayName like.author.displayName 2 Like

@Noble236 

That is what all those police states say, e.g. Putin. I am not commenting on the right or wrong of this, just the fact that Americans are consummate hypocrites.

duduong
duduong like.author.displayName like.author.displayName 2 Like

The irony in the whole Snowden affair is just getting thicker and thicker. First, the US is exposed beyond any doubt that it is exactly the same as any other invasive police states which it has lambasted for decades. Then, the world is reminded of all the torturing and renditioning done by the US. Finally, Snowden provides solid proofs that the NSA has been hacking China for a long time (Not that anyone with a brain would have thought otherwise). Add all this together, one has to be amazed by the degree of hypocrisy exhibited by not only the US government but the American media and public at large. Where is the mass outcry now when supposedly Chinese hacking was reported?

Let's wait until an asylum is granted to Snowden and see the US reaction. It is guaranteed to provide more illustration of American hypocrisy, considering how many foreign "dissidents" and "freedom fighters" (i.e. someone who actually shot innocent people) are funded and protected by the US. 

Because American journalists seem to suffer inevitably from amnesia whenever their hypocrisy is involved, let me remind everyone about Google's "brave" stand against cooperating with Chinese government mandated surveillance operation. It is clear now that Google only has a problem if it is China who does it. That seems to be an attitude shared by the majority of Americans.

kittyctc
kittyctc

Interesting how mainstream American media has been pretending not to care too much of Snowden but if he's to be extradited back to US the last day in Hong Kong will be his last day to ever see the sunlight again. Some people here have been "brainwashed" - fear is the best weapon since dawn of mankind.

ScallywagNYC
ScallywagNYC like.author.displayName 1 Like

As Edward Snowden has found himself becoming a media star we ought to wonder how much his actions have served to foster a legitimate discussion of how freedom and privacy and freedom of thought, mobility remain in the US and to what degree citizens actually care as many have taken to dismiss his actions as narcissistic, misguided and beyond the boundaries of the law.

Which is to open the question how is one ought to in the end go about foster a discussion that challenges how things are actually run in the US and why such discussions are so often shied away from the media and the establishment who seek to preserve the status quo?

Can we really blame Snowden for going outside the law for the greater good...as he believes he has done....???

http://scallywagandvagabond.com/2013/06/edward-snowden-will-not-leave-hong-kong-will-fight-extradition/

lasiennany
lasiennany like.author.displayName 1 Like

If you are online shopping, chatting, using your credit card, etc., you are trading your privacy.  You can make the decision.  Any conversations you want private tell it to your dog or pet rock.  Only then will you be guaranteed.  This has been going on for as long as I can remember.  This is not new.  Even freedom comes at a price. 

Piacevole
Piacevole

It really ought to be up to us to decide whether we are willing to trade our privacy for the hope of security.


But when we didn't know this was happening, how could we decide?  The question is whether something like this, a national policy affecting everybody, should ever have been put into place without it being made known to the public whom it directly affects.  Why should it be a state secret in the first place?

 If we keep up at the rate we're going, al-Qaeda will have won: they will have changed our entire culture, and we will have held still for it, perhaps even welcomed it. 

Sherm
Sherm like.author.displayName 1 Like

@Piacevole You decide every time you go to the polls and vote for your elected representatives who then make tough, informed decisions about issues like nation security.  Snowden doesn't give a rats a** about democracy or your rights.  But don't take my word for it: http://www.nytimes.com/roomfordebate/2013/06/11/in-nsa-leak-case-a-whistle-blower-or-a-criminal/edward-snowden-subverted-the-democratic-process

Piacevole
Piacevole

@Sherm @Piacevole I decide whom I want to vote for when I go to the polls.

However. that person doesn't necessarily win and get to represent me.  Further, often people who get elected seem to under some sort of transformation when they get to D.C.  What seemed to be perfectly reasonable people become focused on getting re-elected, and are responsive to large contributors.

But don't worry.  I don't take your word for it, as to what's in my best interest.  I will judge for myself.  The judgment of elected representatives has hardly been in the best interests of their constituency, a great deal of the time.  They have their priorities, and I have mine.  Clearly, my priorities of privacy do not affect what they are willing to countenance.


lasiennany
lasiennany like.author.displayName like.author.displayName 2 Like

Are we even surprised that there is no privacy.  The average American  tweets, facebooks all of your personal business and you are asking for privacy.  Do you really think the government is interested in your mindless chit chat?  You want privacy go live on a secluded island by yourself if you want privacy.  Even then you would facebook, tweet everything you do on the island and complain " I have no privacy even on an island".  He signed an important serious contract and broke it for what he is claiming is for the good of the Americans but had no problem getting paid all those years.  There's more to it.  You do not betray your country especially the CIA and think you can just walk away.  I am more concerned with this country AMERICA protecting our freedom from terrorist even if it means giving up some privacy.    

Noble236
Noble236 like.author.displayName 1 Like

@lasiennany  probably he doesn't know what it means to be targeted by evil enemies, if he does he will know that NSA is in order. 

Piacevole
Piacevole

@Noble236 @lasiennany If he didn't know about being targeted before, and if he were so utterly lacking in imagination as to have no idea what would happen - and this doesn't sound as if it's the situation - he will soon find out.  

Americans don't like to think that their government might do something evil, but it has happened, and doubtless will happen again.  We justify all sorts of things and make them sound reasonable, to ourselves.  I doubt it always looks like that to everyone, though.