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  • you are the Director for Border Management in your . Over one weekend two incidents involving your staff occur on your border. These incidents involve issues of Customs jurisdiction at international law. The Director-General has asked you for advice on th

You are the Director for Border Management in your . Over one weekend two incidents involving your staff occur on your border. These incidents involve issues of Customs jurisdiction at international law. The Director-General has asked you for advice on th Essay Example

  • Category:
    Law
  • Document type:
    Math Problem
  • Level:
    Undergraduate
  • Page:
    4
  • Words:
    2858

Incident 1:

Where a diplomatic agent does break the law in the receiving state, he cannot be arrested or otherwise detained. Nor can he stand trial be sued or be made to testify before the judicial authorities of the receiving state. Essentially a diplomatic agent is both inviolable and except in respect of a few minor exceptions, immune from the legal processes of the receiving state [Vienna Convention Article 31]. Similarly the premises of the diplomatic mission its archives and documents as well as the private residence papers and correspondence and subject to minor exceptions, the personal property of the diplomatic agent, are all inviolable. Furthermore, the family of a diplomatic agent is entitled to the same privileges and immunities extended to the diplomatic agent. In all cases, inviolability and immunity from jurisdiction are clearly justified in the basis of functional necessity. This inviolability is essential for maintaining the independence of the diplomat and the mission and ensuring their protection from interference by the receiving state and by third parties. The immunity of diplomatic agents and, indeed, their families therefore, stands justified to a certain extent.

The basic privileges and immunities of diplomatic missions and their agents are contained Article 20-36 of the Vienna Convention. Included among the privileges are the exemptions of the diplomatic agent from dues and taxes, social security provisions, personal, public and military service and custom duties taxes and related charges, as well as the exemption of the sending state and the head of mission from dues and taxes in respect of the premises of the mission and the exemption of the mission itself in respect of dues and taxes payable on any fees and charges levied by it in the course of its official duties, while many reasons have been put forward to explain why such privileges are granted, it seems clear that the interference with the functions of a mission and the loss of independence which may be caused by attempts to collect dues or taxes or in the enforcement of social security provisions or provisions governing military service provide more than an adequate basis on which to ground these exemptions.

One of the more restrictive rules that the Vienna Convention provides is stated in article 36. The convention codified practices that were difficult to generalize. As Denza observes: “Prior to the Vienna Convention, there was a general agreement among writers, strongly supported by the State and practice legislation, that the grant of customs privileges to members of diplomatic missions was not a legal requirement of customary international law but a matter of courtesy, comity or reciprocity.

According to Article 30 of the Vienna convention, a diplomat has immunity when it comes to his property. This is something that the official abused in his over enthusiasm to check the ambassador’s bag, simultaneously abusing the tenets of the convention where the Brigadoon ambassador was concerned. According to Article 37 the clarification of Article 36(2) the ambassador’s wife also comes under the purview of protection, while her privileges and immunities guaranteed under article 37 which includes but not limited to article 29 to 36 on the Vienna convention on diplomatic relations (MacClanahan, 1989). Also significant is the fact that privileges and immunities are definite from the time the dignitaries alight the receiving state up to when his or her time ends and hence at no time are they allowed to be stripped off these immunities.

This incident can be concluded by touching on article 41 which states that the diplomatic mission should not use the privileges and immunities accorded to him to perform any other function which is may be incompatible with his or her functions. Important in this case is the fact that even after rummaging through the ambassador’s belongings, nothing was found at all, which meant that there was no justification for his actions, holding the ambassador in abuse of his diplomatic privileges.

Article 36 of the Vienna Convention on Consular Relations, to which 170 nations are party, requires a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access. Article 26(2) f he Vienna Convention provides:

The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving state. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative”.

Over the years certain measures have been taken to curb the scope of this paragraph, and countries have used innovative measures to curb illegal trafficking, smuggling activities while extend some measure of control over the luggage of visiting dignitaries as well. For example in September 1986, the Italian foreign ministry announced as an anti terrorist measure that all diplomatic baggage and pouches in Italy would be scanned by metal detectors and possibly by X-Ray devices. This seemed to be an innovation in national practice. In April 19885, the British foreign secretary had indicated that his government’s policy was against the introduction of scanning as a matter of routine, but that Britain would be ready to scan any bag on specific occasions where the grounds for suspicion are sufficiently strong. The US State Department’s Office of Foreign Missions has resisted the practice of scanning when applied to US diplomatic pouches.

The idea here therefore is that the personal luggage of a diplomatic agent is generally regarded as exempt from custom inspection. However there might be exceptional cases where the receiving state would be justified in opening the baggage and examining the same. This must only be on very serious grounds such as when there are cogent reasons for presuming that the baggage contains articles other than those intended for the personal use of the diplomatic agent or members of his household or those intended for his establishment. The baggage may also be inspected if there are very good reasons for suspecting that it contains articles the import of which is prohibited by law of the receiving state. The Vienna Convention in Article 36(2) has recognized the exceptional rights of the receiving state. It is however, necessary in order to prevent any abuse of this right by the receiving state that the baggage must be opened only in the presence of the diplomat himself or his authorized agent (Sen, 2001).

In the aforementioned case, the junior custom official disregarded the ideal of the section 22 of the Vienna Convention that the dignity of a foreign dignitary will be upheld at all times (Slomanson, 2010), causing embarrassment to the Brigadoon ambassador. Given the fact that both the ambassador and his wife were travelling on diplomatic passports the officer displayed bad judgment in opening their suitcases.

While the Vienna Convention, article 36 (2) states that in case officials suspect that luggage is being used to ferry substances suspect which will not be used by the dignitary or his family, then they have the right to inspect the luggage. The fact that Samsonite suitcase was suspected to ferry traffic drugs is enough justification for opening the bag, especially given the fact that the officer inspected the bag in the presence of the ambassador and his wife.

However, important here is the application of article 24 which sets about expanding the principles of article 22. It includes the involution of diplomatic missions of the mission archives and documents even outside the mission so that the receiving state may not seize or inspect such information or use of this in legal proceedings (Fastenrath, et. Al., 2011). In the context of the case, the ambassador had already identified himself, therefore making it mandatory according to the rule for the custom official to let the ambassador speak with a senior official instead of rummaging his luggage.

Conclusion:

Also, the fact that the bag did not have a diplomatic tag was in no way sufficient reason for inspecting it, especially given the fact that article 24 protects even diplomatic mission documents outside diplomatic premises. Also, according to 36(2) officials need serious grounds to inspect the luggage of diplomats protected by diplomatic immunity. Just the fact that a sniffer dog reacted to the luggage is in no way serious enough a charge especially in light of the fact that this was not backed by prior information of any kind. Given the circumstances and the fact that the ambassador took offense the better way to make amends would be to ensure that the official apologized to the ambassador followed by an apology from the government as well.

Incident 2:

in understanding whether or not the coast guard was well within their rights to chase, board and detain the vessel in question, it is important that one understands the issue at hand in the context of the principle of ‘hot pursuit’.

The doctrine of hot pursuit in the international law of the sea is closely related to the principle of the freedom of the high seas since it constitutes one of the traditional limitations to that freedom. Hot pursuit is obviously also an exception to the rule of the exclusive jurisdiction of the flag State on the high seas over vessels flying it flag. In fact the principle of the freedom of the high seas includes this last rule as well (Churchill and Lowe, 1998). The right of hot pursuit-an exception to the freedom of high seas-is at the same time a right of the littoral state established for the effective protection of areas under its sovereignty or jurisdiction (Churchill and Lowe, 1998). Hot pursuit may be defined as the right of the coastal state to continue, outside the territorial sea, the contiguous zone, or certain adjacent areas, the pursuit of a foreign vessel-while within the internal waters of the pursuing state-has violated the laws and regulations of this state, provided however that the pursuit has commenced immediately after the offence and has not been interrupted (Churchill and Lowe, 1998).

Also important in the context of the case is the United Nation Convention on law of the sea. This law had its basis in the fact that water plays an important role for commercial activities that involve import and export activities. According to experts, Article 2 of the Convention on law of the sea tries to set limits on the uses of the sea even in cases where waters are closely shared by two countries. According to article 19, coastal states are expressly given the right to take enforcement measures in respect of crimes committed on ships passing through the territorial sea after leaving internal waters and impliedly retain the right which flows from their sovereignty over that sea, to enforcement jurisdiction over ships not engaged in passage but lying in the territorial sea. According to the agreement Saudi Arabia allows vessels the rights of innocent passage under article 19 if they are considered not to prejudice the country’s security. Also the measurement of the contiguous zones is critical in this case. According to the convention the boundary is set at 24 nautical miles into the sea from the coast. According to the treaty the right exists to extend authority over this territory to protect it from infringement of customs, to prevent environment pollution and in controlling migration.

. Nordquist, Rosenne and Nandan, 1995)Article 111 of the Convention on law of the sea formulates the right of hot pursuit within the context o the new law of the sea and sets put details concerning the exercise of that right. The right of hot pursuit is the right of a coastal state to undertake pursuit of a foreign ship which has good reasons to believe has violated any of its laws and regulations (

. The hot pursuit of a foreign ship may be undertaken when the competent authority of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Nordquist, Rosenne and Nandan, 1995)That right applies to violations in the coastal state’s internal waters, archipelagic waters, and territorial sea, contiguous zone or exclusive economic zone or on its continental shelf. In this respect, article 111 reflects the inclusion of the convention of the new definition of the continental shelf (

. Nordquist, Rosenne and Nandan, 1995)Such pursuit must be commenced when the foreign ship or one of its boats in within the internal waters of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted (. Nordquist, Rosenne and Nandan, 1995)(The Convention gives us the right as the territorial state to exercise authority over this area to prevent infringement of customs, to prevent environment pollution and in controlling migration. Since the foreign vessel dropped the object in the contagious zone the custom official had the right to act to prevent infringement of our territorial rights

. Nordquist, Rosenne and Nandan, 1995)The release of a ship arrested within the jurisdiction of a state and escorted to a port of that State for the purpose of an inquiry before the competent authorities may not be claimed solely on the ground that the ship in the course of its voyage was escorted across a portion of the high seas, if the circumstances rendered this necessary (

The custom officials intercepted the foreign vessel 50 nautical miles in the sea which is beyond the contiguous zone of which we rights to prevent infringement of our territory. This area is classified as the exclusive economic zone of which stretches 200 nautical miles into the sea waters and which is we are under obligation to ensure conservation and to prevent over exploitation as we have exclusive economic rights. The provisions for the exclusive economic zones are found in article 55 and 75 of the Convention and do not include navigation and flights rights (Aust, 2005).

United Nations Convention on Illicit Drug Traffic in this case applies only to Saudi Arabia which is party to the Convention. The country still has an obligation to extend its respect the Convention to prevent illicit drug traffic. According to the rules of the convention, provides that if a coastal state suspects that a foreign vessel flying a flag is involved in illicit trade as in this case the party is supposed to notify the flag state for authorization to take any necessary measures against the vessel. Finally, under the aegis of the

:Conclusion

the Customs vessel did not have sea-going capability and could not pursue the foreign vessel, but it did have the capability to intercept the fishing boat. In conclusion, therefore it may be stated that there was an obvious case of the implementation of the principle of hot pursuit with correct reason in this case given the fact that the coast guard had it on credible information that the vessel carried drugs and was obligated to put a stop to the illegal activity. Also given the fact that the right to hot pursuit was established it automatically gave the coast state the right to board and inspect the vessel of the flag state. The ship was asked to stop but paid no heed hence requiring the use of force. In the context of the case,

On instructions from the operations room, it did so, boarded it and searched it early on Thursday afternoon. Also important to the addressal of the problems in this case are the events that unfolded later in the course of the search. There was a break in the journey, the crew members aboard the vessel had prior record of convictions for possession illegal trafficking substances. Also another vessel was intercepted in the sea which had a relationship to the case where traces of heroin were detected. All of the evidence, though circumstantial points to the fact that there was some kind of an illegal activity on course aboard the ship and the members of the custom were correct in intercepting, searching and detaining this particular vessel. Therefore in conclusion one could state that the flag country has no leg to stand on and in this case they should be asked for an explanation for the contents and scenes on board the intercepted vessel.

References:

Nordquist, M. H. Rosenne S. and Nandan, S. N., (1995). United Nations Convention on the Law of the Sea, 1982: a commentary. Martinus Nijhoff Publishers. p249

Churchill, A. V., Lowe, N., (1998). The law of the sea. Manchester University Press ND. P82

. Cambridge: Cambridge University PressHandbook of International lawAust, A., (2005).

Sen, B., (2001). A diplomat’s handbook of international law and practice.Martinoff Nijhoff Publishers. p179

Barker, C. J., (2000). International law and international relations. Continuum International Publishing Group. p167.

Fastenrath, et. Al., (2011). From Bilateralism to Community Interest: Essays in Honour of Bruno Simma. Oxford University Press. p936

Slomanson, H. R., (2010). Fundamental Perspectives on International Law. Oxford university Press. p103

Macclanahan, V.G., (1989).Diplomatic immunity: principles, practices, problems. C.Hurs & Co. Ltd: London.