International Law

Safe Haven(s) for Snowden?

By Ashley Deeks
Tuesday, June 11, 2013, 6:00 PM

A slew of news reports have discussed whether Snowden’s choice of Hong Kong as a haven of sorts was a wise one.  These reports tend to note the existence of a U.S.-Hong Kong extradition treaty and to describe the relatively smooth extradition practice that exists between those governments.  But the stories tend to overlook the fact that extradition is not the only means by which foreign states (or governments) can transfer people to the United States to stand trial.  As the State Department’s Foreign Affairs Manual makes clear, the United States may ask other countries to return individuals to the United States by means of deportation or expulsion.  (See, for example, 7 FAM 1642 – Deportation of Fugitives to the United States.)  This is particularly viable where the wanted person is a U.S. national.  According to the FAM, U.S. authorities set this type of request in motion as follows: The Department of Justice gives the Department of State a copy of the arrest warrant for the fugitive and asks State to revoke the fugitive’s passport.  After State revokes the passport, it notifies the U.S. Embassy (or, in a case such as Hong Kong, the U.S. consulate) in the country in which the fugitive is located.  The Embassy or Consulate then approaches the host government with a request for expulsion or deportation, if such a process is authorized by the host government’s laws.

Different states have different deportation processes, presumably with varying levels of procedural protections.  While I am no expert on the laws of Hong Kong, it appears from this report submitted by the Hong Kong Human Rights Commission to the Human Rights Committee (which oversees states’ implementation of the ICCPR) that the Chief Executive of Hong Kong may issue a removal or deportation order and that the person subject to that order (assuming he lacks a “right of abode” in Hong Kong) does not have a right of review of that decision under Hong Kong’s Bill of Rights.  [If I am wrong about this, I would welcome corrections.]

Assuming Snowden remains in Hong Kong, the United States might decide to try to obtain custody of Snowden through the extradition process because it concludes that extradition is the most legally airtight process.  But it might decide instead to pursue the deportation/expulsion avenue for purposes of expediency (and because U.S. courts have tended to uphold U.S. prosecutions of individuals brought before the court via means other than extradition).  Thus, even if Snowden flees to a state with which the United States does not have an extradition treaty, he is hardly home-free.  Snowden can breathe a little easier only if the state in which he ends up has a very bad political relationship with the United States, is willing to grant Snowden asylum, has very stringent laws regulating deportation, or has in place other legal bars that render it difficult for the requested state to accommodate a U.S. deportation or expulsion request.