Business Week: How Long Can Edward Snowden Stay in Hong Kong?

China Labour Bulletin is quoted in the following article. Copyright remains with the original publisher

By Bruce Einhorn

10 June 2013

Where in Hong Kong is Edward Snowden? We know from the Guardian that the 29-year-old former CIA employee is somewhere in the former British colony. From what he said in the interview, Snowden seems to be staying in a nice hotel on the Hong Kong side of Victoria Harbor. Nice because he has been getting his food from room service, so he’s not at some dive; and on the Hong Kong side because—in what seems to be a moment of carelessness—the employee of defense contractor Booz Allen Hamilton (BAH) told the Guardian the U.S. consulate was just “up the road.”

Unless he’s engaging in some misdirection, that suggests he’s somewhere close by the hulking building on the lower slope of Victoria Peak, on the edge of Hong Kong’s downtown. Compared with other Chinese cities like Beijing and Shanghai, Hong Kong doesn’t have that many big hotels, so if the U.S. government is indeed trying to find him, there might not be too many places to check in the city’s Central and Admiralty districts.

It’s unclear how long he’ll be staying and what might happen if the U.S. tries to get the Hong Kong government to hand him over. Snowden told the Guardian he wants to seek asylum in Iceland, but Kristin Arnadottir, Iceland’s ambassador to China, told the South China Morning Post that the country can’t offer asylum unless Snowden is in the country.

For now, that leaves Snowden stuck in his Hong Kong hotel room—and creates an opportunity for the U.S. government. While the U.S. does not have an extradition treaty with China, it does have one with the Special Administrative Region (SAR), and the Obama administration could try to use that agreement to get Hong Kong to hand him over.

One potential problem for the U.S. if the Obama administration decides to request extradition: The treatment of Pfc. Bradley Manning, the U.S. soldier now on trial for allegedly aiding the enemy by providing information to WikiLeaks. Manning has already pleaded guilty to lesser charges that could send him to prison for 20 years. Last week, the court martial started for his alleged violations of the the Espionage Act and the Computer Fraud and Abuse Act. If found guilty, he could face a life sentence.

In a report published last year, the United Nations special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Juan E. Méndez, criticized the U.S. for 11 months of solitary confinement of Manning: “The Special Rapporteur concludes that imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

Such criticism of the treatment of Manning could make Hong Kong judges less willing to accept any U.S. request for extradition. “The Hong Kong authorities have a consistent practice of not removing or extraditing individuals who fear political persecution in their home countries,” said Kelley Loper, an assistant professor of law at the University of Hong Kong who specializes in international human rights and refugee law, in an e-mail.

If he tries to fight extradition in Hong Kong, Snowden might be able to take advantage of a recent ruling by the city’s Court of Final Appeal, the highest in the territory. Last December, the court ruled the local government has a duty not to send people to places where they might face cruel, inhuman, or degrading treatment or punishment. That decision could help Snowden. According to Loper, “Snowden may be able to demonstrate that he fits the refugee definition if the treatment he fears at the hands of the U.S. authorities could amount to ‘persecution.’”

Where does China fit into this? Hong Kong has operated on the “One Country Two Systems” principle since returning to the motherland in 1997, so there’s a limited role for China in any extradition request. When it comes to allowing dissent, One Country Two Systems works. A lot of people whom the Chinese government would lock up if they were on the northern side of the Hong Kong-Shenzhen border can operate freely in the SAR. Labor activist Han Dongfang, for instance, a founder of an independent trade union during the 1989 Tiananmen protests, is the director of Hong Kong-based China Labour Bulletin, an organization promoting workers’ rights in the People’s Republic. The Chinese government has been unrelenting in its crackdown on the Falun Gong movement, but there are plenty of Falun Gong anti-Communist Party banners in Hong Kong and Kowloon.

Hong Kong’s extradition treaty with the U.S. does give some power to China. According to the Senate Foreign Relations Committee report on the agreement back in 1997, “the treaty permits Hong Kong to refuse extradition if the PRC (not the Government of Hong Kong) has an interest relating to defense, foreign affairs, or essential public interest or policy.” That said, Snowden shouldn’t count on China protecting him from the clutches of the Americans. Since the Chinese leaders are hardly ones to care about snooping governments allegedly violating citizens’ privacy, his crusade isn’t likely to resonate with them. If asked to turn him over, China’s leaders might be ready to give him up and score points with the U.S. for issues that matter more to them.

The U.S. might be able to call in a favor with the Chinese. The Bo Xilai scandal that rocked the Chinese government started in February 2012 when Wang Lijin, the police chief of Chongqing and protégé of Chinese politburo member Bo, suddenly fled to the U.S. consulate in the western Chinese city of Chengdu. Wang didn’t get asylum and didn’t stay a guest of the Americans for very long: The next day, he left and was promptly taken into custody by the Chinese. By September the same year, a court had convicted him of corruption and other charges and sentenced him to 15 years in prison.

The Chinese and Hong Kong governments might worry about the potential for Snowden’s presence providing fuel to the pro-democracy movement in Hong Kong, where locals are already heading toward a confrontation with their city’s overlords in Beijing. Back in the colonial days, a London-appointed governor ruled Hong Kong. Under the Basic Law, the mini-constitution that has governed the city since Prince Charles sailed off on July 1, 1997, the Special Administrative Region has a chief executive. Last year, an electoral committee of fewer than 1,200 people chose the current boss, C.Y. Leung, but the Basic Law says “the ultimate aim is the selection of the Chief Executive by universal suffrage.”

Leung’s term is up in 2017 and democracy advocates are calling for an election with universal suffrage. Pro-democracy activists are already talking about a mass demonstration modeled on the Occupy movement next year, with 10,000 people protesting in the city’s Central district. The Chinese government isn’t taking the threat lightly: The official China Daily newspaper has called the plan a “staged fiasco” that could “paralyze the city’s commercial hub to gain bargaining power” for critics of the central government. With that battle ahead, leaders in Beijing and Hong Kong probably won’t want Snowden to be a long-term resident. Whether they would succeed in getting Hong Kong’s courts to send him back to the U.S. is another story.

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