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Extradition and the airport transit lounge – the Snowden case

Abstract

The case of the 29 year old whistleblower Edward Snowden brought to bear the serious ripples of diplomatic fallout that follow an international event of espionage, political interests and strategic manoeuvring between three of the most powerful and influential States in the world. Underlying this intrigue were also the significant legal issues that emerged in the field of transportation security. Issues such as, how is an offender treated at the transit lounge of an international airport? Is the transit lounge a “no man’s land” pertaining to which the State in which the airport is located has no control or jurisdiction? What does international law have to say on these issues? What role does extradition play in ensuring security in international transportation of persons? This article addresses all these issues, including the complexity of extradition in the international context and domestic law and treaty law; nuances of international relations and the politics of transportation concerning those who commit offences; territorial sovereignty of a State; and State responsibility toward ensuring international cooperation and the apprehension of offenders who use international transportation to avoid prosecution at home.

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Notes

  1. The National Security Agency (NSA) is a cryptologic intelligence agency of the United States Department of Defence responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting US Government communications and information systems which involves information security and cryptanalysis/cryptography.

  2. a criminal complaint is one way to begin a federal criminal case. To get one, a federal agent, with a federal prosecutor assisting, drafts an affidavit explaining the facts supplying probable cause for the federal charges sought. The agent takes the complaint to a United States Magistrate Judge. If the Magistrate Judge agrees that the affidavit supplies probable cause, he or she signs the complaint and (if sought) arrest warrant. http://www.popehat.com/2013/04/22/thoughts-on-the-tsarneav-complaint/

  3. The communiqué also stated that “HKSAR Government has formally written to the US Government requesting clarification on earlier reports about the hacking of computer systems in Hong Kong by US government agencies. The HKSAR Government will continue to follow up on the matter so as to protect the legal rights of the people of Hong Kong”. http://www.info.gov.hk/gia/general/201306/23/P201306230476.htm

  4. Extradition Law of the People’s Republic of China (Order of the President No.42), Chapter II, Article 7.

  5. Id. Article 11.

  6. Id. Article 16.

  7. [1987] 1 S.C.R.

  8. In 2010 Assange oversaw the analysis and publication of over half a million documents from the Pentagon and the US State Department and coordinated the analysis of the documents by 110 different media and human rights groups

  9. Role General No. 144.

  10. Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at 269–270.

  11. Yearbook of International Law Commission 1976, Vol II, Part One at 29.

  12. The film The Terminal, directed by Steven Spielberg and starring Tom Hanks, is partly based on the real-life story.

  13. Convention on International Civil aviation, signed at Chicago on 7 December 1944 (hereinafter referred to as the Chicago Convention) See ICAO Doc 7300, 8th Edition: 2006.

  14. Annex 9, Chapter 3 Section E, Standard 3.38.1.

  15. Id. Standard 3.39.

  16. ICAO Annex-17/9th Edition/’Annex-9 – Chapter 5 – B.

  17. ICAO Doc.8973/7th Edition, Volume IV, Chapter 5 – Article 5.4.1

  18. everythingalsocomplain.com/2012/01/03/buffalo-hunter-caught-with-bullets-at-changi-airport/

  19. African Commission on Human and Peoples’ Rights, Comm. No. 40/90 (1997). Comm. No. 40/90 (1997).

  20. Sovereignty has two attributes:

    1. a)

      Internal sovereignty, whereby a State exercises its exclusive right and competence to determine the character of its own institutions and to provide for their function. Internal sovereignty also includes the exclusive power of a State to enact its own internal laws and to ensure their respect; and

    2. b)

      External sovereignty, whereby a State freely determines its relations with other States or entities without the restraint or control of another State

  21. The Montevideo Convention of 1933 in its Article 1 provides that a State as a legal person of international law should possess: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. See Montevideo Convention on the Rights and Duties of States, signed at Montevideo, 26 December 1933. The Convention entered into force on 26 December 1934. http://www.taiwandocuments.org/montevideo01.htm

  22. J.G. Starke, An Introduction to International Law, 7th ed. London: Butterworth’s, 1977 at 106.

  23. http://users.lmi.net/wfanca/pp_annan_on_sov.html

  24. Starke, supra, note 23 Ibid.

  25. Ian Brownlie, System of the Law of Nations: State Responsibility, Part 1, Oxford Clarendon, 1983 at 39.

  26. Report of the International Law Commission to the United Nations General Assembly, UNGOAR 56th Session, Supp. No. 10, UN DOC A/56/10, 2001 at 73.

  27. E.J. de Arechaga, International Responsibility, in Manual of Public International Law, M. Sorenson ed., St. Martin’s Press: New York, 1968, 531 at 535.

  28. Differences Relating to Immunity from Legal Process of a Special Rapporteur, ICJ Reports 1999, 62 at 87.

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Correspondence to Ruwantissa Abeyratne.

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DCL (McGill), Ph.D (Colombo), LLM (Monash), LL.B (Colombo), FRAeS, FCILT. The author is former Senior Legal Officer at the International Civil Aviation Organization

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Abeyratne, R. Extradition and the airport transit lounge – the Snowden case. J Transp Secur 7, 17–26 (2014). https://doi.org/10.1007/s12198-013-0126-y

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Keywords

  • Airport transit lounge
  • Snowden
  • Extradition
  • Espionage
  • Assange
  • Immunity
  • Asylum
  • State responsibility
  • Chicago convention
  • Annex 9
  • Annex 17
  • International law