Edward Snowden, a former governor contractor who leaked classified information from the National Security Agency (NSA), creating worldwide indignation due to the revelation of the major extent of United States spying practices, has generated controversial debate around the globe on the accuracy of publishing confidential material and the need for other countries to grant him asylum.
Indeed, in June 2013, Edward Snowden had to flee to Russia after the U.S. Department of Justice unsealed charges against him with two counts of violating the Espionage Act and theft of government property. Without going much into detail of US legislation in this case, in consideration of the charges he is facing it appears clearly Snowden would not be a free man in the United States. However, it can be argued whether or not his actions fall under the Espionage Act, since he carefully selected and consulted several journalists to determine the documents to be published in the public interest and the ones to be withheld. In fact, he could have sold information to a foreign surveillance agency or to an enemy of the United States, more likely to be considered an act of espionage than revealing precise documents to and in the interest of the general public which rather corresponds to whistleblowing and is similar to what thousands of investigative journalists do.
That being said, over the last years, a growing part of civil society, especially in France, has raised its voice in order to convince government officials of the need to accord Snowden political asylum in the Hexagon. The question to raise is whether France can grant asylum to Snowden and on which legal foundation?
When talking about political asylum, you cannot get around without considering international law and more precisely the Geneva Convention relating to the Status of Refuges. Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as: “a person who owing to a 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.” (…)
At first glance, it seems Edward Snowden can be qualified as a “person owing a well-funded fear of being persecuted for reasons of political opinion”. However, legally this qualification seems inaccurate as he does not claim to belong to any specific political party and vice-versa no organisation nor any political party claims to lead the battle he is fighting. Nevertheless, the expression of “political opinion” is open to appreciation. To illustrate, if Snowden was leading his fight on the Chinese internet, it would most likely be recognised as political opinion as the Internet in China is clearly political, but regarding the US such a legal foundation is rather fragile.
In reality, France doesn’t necessarily have to seek for a foundation in regard to international law. A state always has the possibiliy to accord asylum on a discretionary basis, even though the protection in that case is minimalistic as it can be withdrawn with a simple political shift. More importantly, french national law recognises, in one of the many prerogatives its fundamental law contains, a form of “constitutional asylum”, consisting in the possibility to grant asylum to a person leading a battle like Snowden. Indeed, the fourth paragraph of the preamble of the 1946 Constitution, which has entire and equal value to any other constitutional provision, claims that : “Any man persecuted for his action in favor of freedom has asylum in the territories of the Republic”. Snowden, who informed the world about the large-scale spying practices of the NSA which exceed by far what is necessary to contain terrorist threat or other geopolitical risks, undoubtedly put the general interest as well as ethics above reasons of state. Thus, his actions amounted to worldwide debates about the necessity of wiretapping and the need to legally frame such activities by enacting national and international legal provisions in order to maintain both the legitimacy of secret services and their operations as well as to protect every citizens rights and liberties.
His fight for freedom is emphasised by taking into account that he sacrificed an economically rewarding career as well as his private life, living with his girlfriend of many years in Hawaii, in order to inform citizens around the world to what extent the US government and its allies are secretly violating their privacy and to inform people of the need to fight for their liberty and their right to privacy. In the country of human rights, as France likes to be reminded and remembered, there is no legal hint in according Edward Snowden asylum. Instead, there is precedence.
In 1792, the legislative assembly of the French Revolution granted French citizenship to foreign patriots distinguished for their actions or their writings on behalf of their fight for liberty. As a consequence, became honorary citizens of the French Republic figures like Thomas Clarkson, Friedrich von Schiller, George Washington, Alexander Hamilton and James Madison.
In the light of the above, it seems to me as if the real question to ask is not whether or not France can grant asylum to Edward Snowden, but why France does not grant asylum to Edward Snowden?
A lot of answers to that question are likely to turn around diplomatic reasons, the main cause the government prefers not to put itself in a delicate position by welcoming Snowden. Disturbing diplomatic relations between two great nations like France and the United States is certainly not in anyone’s interest. However, France has a possibility here to show its greatness and to recomfort its noble reputation inherited from the Englightenment Age regarding individual liberties by supporting, in a sovereign act, the honourable fight for freedom and citizen’s privacy rights in the 21st century. And in the end, why do we need diplomacy if not to peacefully enhance relationships between countries which can have different positions on various political subjects?