Application of the Law to the Facts - Case Study Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Application of the law to the facts Tutor : xxxxxxxxxxx @2010 Application of the law to the facts This report seeks to provide a brief summary of an incident involving the Ambassador of Brigadoon at the capital international airport on March 20, 2010. It will highlight the legal issues involved in the incident and reflect the application of the law to the indentified issues. The laws that will be applied in this case include, Moreover, this report will seek to give advice to the customs Director General on how to address the above incident. Brief Summary of the incident On March 20, 2010, the Ambassador of Brigadoon flew into the capital international airport. On this day, he was using his diplomatic passport that was given by the Brigadoon government to travel. The Protocol Department of the Foreign Ministry did not inform the Customs about the return of the ambassador into the country. Moreover, an official delegation was not present at the airport to welcome the ambassador and his wife. The customs administration at the capital international airport was also not aware that the embassy vehicle and its driver were waiting outside the airport waiting to pick the ambassador and his wife. Following the arrival of the ambassador at the luggage carousel, a junior customs staff noted that the drug detector dog responded emphatically to the ambassador’s luggage. After collecting their luggage from the carousel, the ambassador and his wife proceeded to the exit through the Green channel. The customs officer in attendance stopped both he ambassador and his wife and requested that they should proceed with him to the baggage examination area so that their luggage can be scrutinized again. The customs officer was not aware of the couple was the ambassador and his wife. Issues The main legal issue that emerges in the above scenario lies in whether dignitaries and prominent persons should be subjected to extensive security checks following signals that they could be carrying high risk luggage. In reference to the above scenarios , it is worthing questioning whether the fact that the customs officer was acting according to international legal standards by stoping the ambassador and conducting a security search. Similarly, it is worth questioning wether the ambassador’s status is pertinent in determining the security measures that should be taken.Furthermore, it is worth questioning wether the ambasador’s wife is entitled to the same priviledge of being exempted from entensive security checks at the airport. The fact that the Protocol Department of the Foreign Ministry did not inform the Customs about the return of the ambassador into the country raises the concern on whether this is a breach of duty or negligence. Moreover, an official delegation was not present at the airport to welcome the ambassador and his wife. The customs administration at the capital international airport was also not aware that the embassy vehicle and its driver were waiting outside the airport waiting to pick the ambassador and his wife. This further raises the concern on whether it was necessary or imperative for the customs administration at the airport to be notified on the arrival of the ambassador and his wife into the country. Another legal issue emerges owing to the fact that the ambassador’s luggage had no official marking indicating his status. On this day, the ambassador was carrying a standard Samsonnite suitcase that did not have any official markings. It had the first class tag, baggage tag and a label showing his name. Consequently, the drug detector dog responded emphatically to the ambassador’s luggage causing the customs staff to stop both the ambassador and his wife and requested that they should proceed with him to the baggage examination area so that their luggage can be scrutinized again. It can be argued that owing to the fact that the ambassador’s luggage did not have any official markings, the customs officer was not aware that the couple was the ambassador and his wife. Application of the law to the issues The World Customs Organization establishes that airport security issues are very important and therefore issues pertaining to security should be given the much needed attention. As a result, customs control integrates security measures that revolve around, the use of risk management strategies to determine high risk luggage and the use of information technology in examining the luggage that come in and out of a jurisdiction1. Customs Act of 1901 further provides that customs administration at the airport requires recommended practices and transitional standards that are depicted in the international and national legislations. Customs officers are therefore required to maintain the national and international agreements so as to ensure that there is congruence between their policies and practices with the international legal standards2. According to international customs standards and provisions, imported goods or luggage, are subject to the control of customs from the time that they are imported to the time that they are delivered. Therefore, in the course of this time customs officer can use their discretion to determine whether a particular luggage requires extensive examination3. In reference to the provisions of section 30 of Customs Act of 1901, there are specific provisions on be what should done in regards to the required security standards. These provisions establish that customs shall maintain the national and international agreements in order to ensure that there are higher levels of security at the airport. Therefore, it is a recommended practise for customs administration at the airport to conduct thorough security checks4. Basic principles from the international customs regulations put into account the jurisdction of customs operation. For instance, in the above incident the jurisdiction under observation is Saudia Arabia. 5Saudia Arabis as a customs jurisdiction has set out general and specific provisions that give guidelines to cusoms administrations how to implement security measures that avert the bringing in of illegal goods into the country. These provisions require the customs adminstration in Saudia Arabia to cooperate with other relevant bodies such as the Protocol Department of the Foreign Ministry so as to actualize its goal of enhancing security. These provisions further stipulate that customs administration should set up and maintain formal consultative relations and cooperation with other bodies in order to enhance effective practices as established in international agreements and national provisions6. In reference to the 1961 Vienna Convention on Diplomatic Relations, the fact that the customs officer at the airport stopped and inspected the luggage of the ambassador can be considered as unlawful. The 1961Vienna Convention on Diplomatic relationships gives provisions on diplomatic intercourse, immunity and privileges that are geared towards promoting friendly relations among nation7 . Given the fact that both Saudi Arabia and Brigadoon are both members of the Vienna convention the stipulation of the 1961 Vienna Convention on Diplomatic Relations are pertinent in the above incident. For instance, Article 10 of the Vienna Convention on Diplomatic Relations provides that the Foreign Affairs Ministry of the receiving states should be notified of the arrival, departure of a diplomatic figure such as the ambassador. These notifications should be prior to the particular arrival or departure of the alleged individual. In the above incident the Foreign ministry did not inform the customs administration of the arrival of the ambassador into the country thus breaching the agreements of the Vienna Convention on Diplomatic Relations8. Moreover, the 1961 Vienna Convention on Diplomatic Relations under Article 40 provides that if a diplomatic agent such as the ambassador should be accorded inviolability immunities. The same should be done if he or she accompanied by any of his family member. In such circumstances the states should not hinder the passage of the diplomatic agent and their family through its territories. In regard to the incident that occurred at the capital international airport it is apparent that these stipulations were breached since both the ambassador and his wife hindered from proceeding through the Green exit channel unless their luggage was reexamined9. Under Article 22 of the 1961 Vienna Convention on Diplomatic Relations the belongings of a diplomat should not be accessed by the host country without the permission of the alleged diplomatic agent. On the basis of these provisions it is evident that the rights of the ambassador and his wife were violated since they were subjected to an involuntary security examination at the Capital International Airport. In addition, the 1961 Vienna Convention on Diplomatic Relations under Article 27 provides that diplomatic luggage should not be detained. The luggage of a diplomat should constitute of visible external markings that depict their status. The diplomat is entitled to the privilege of inviolability and should therefore not be subjected to any form of detention or inspection. Given the fact that the ambassador’s luggage did not have any official markings depicting his status, we could assume that the customs officer was not aware of his status thus he was declined the privileges as depicted in Article 27 of the 1961 Vienna Convention on Diplomatic Relations. Nevertheless, contrary to the claims of the customs officer, that the status of the ambassador was irrelevant in determining whether extensive security checks should be carried out , it is evident that the provisions of the 1961 Vienna Convention on Diplomatic Relations exempts diplomatic agents from undergoing such security checks at the airport10. Article 29 of the 1961 Vienna convention on Diplomatic Relations diplomatic agents such as ambassadors should not be subjected to any form detention or arrest. Moreover, they are not liable for any form of criminal or civil prosecution. However, under Article 32 and Article 34 the country in which they come from can carry out these tasks. Article 32 of the 1961 Vienna convention on Diplomatic Relations further provides that the immunity that a diplomatic agent enjoys in the host country can be only be waived by the authorities form the country of origin. Under Article 37 of these agreements on diplomatic relations the family members of a diplomat living in the host country also has equal privileges and immunities that that the diplomatic agent is entitled to . Article 34 also provides that diplomats should be exempted from customs duties and other taxes. Advice to the Director General Bearing in mind that both Saudi Arabia and Brigadoon are members of the Vienna Convention on Diplomatic Relations it is essential for the customs administrations to adapt regulations that give on the agreed international security standards and practices. Unambiquous and rigorous stipulations should be put into place so as to counter the policy challenges revolving around the enforcement of security measures at that airport. Adequate provisions of ensuring that security measures are effectively been practiced should as well be put enacted. By adapting these regulations, the execution of international reguirements in regards to security measures at the airport will be actualized11. As far as the enhancement of supply chain security is concerned, customs officers at the airport should be given the authority to inspect goods or luggages that are being let into the country. In the course of conducting these inspections equipments that are non-intrusive such as the radiation detection equipment should be used. For instance, in regards to the incident at the airport, the customs officer could have used non-intrusive equipment to inspect the ambassador’s luggage rather than opening it and rummaging through12. Consequently, this process made the ambassador and his wife feel like they were victimized since the customs officers intruded on the ambassador’s luggage. It is therefore important that non-intrusive equipments should be used to carry out inspection on luggage that could be termed as suspicious Additionally, the provisions of the1961 Vienna Convention on Diplomatic Relations should be upheld. This is mainly because these provisions aid in promoting friendly relations among nations. The privileges given to diplomatic agents according to the provisions of this charter should be put into account. Moreover, the customs administration at the airport should create awareness to its staff in regard to diplomatic relations so that the rights and privileges of diplomatic agents are not violated due to lack of knowledge13. Conclusion Evidently, it would be appropriate for the Customs Director General to issue a formal apology to the ambassador and his wife. In reference to the 1961 Vienna Convention on Diplomatic Relations the rights and privileges of both the ambassador and his wife were violated. For instance, according to Article 10, 27 and 40 the rights of the ambassador and his wife to be exempted from extensive security search and temporary detention were violated. In addition, the 1961 Vienna Convention on Diplomatic Relations under Article 40 stipulates that if a diplomatic agent such as the ambassador should be accorded inviolability immunities14. The same should be done if he or she accompanied by any of his family member. In such circumstances the states should not prevent the passage of the diplomatic agent and their family through its territories. On the other hand, the international legal standards on customs control establish that security measures should be upheld so as to avert the transfer of illegal goods such as illicit drugs and weapons of mass destruction. 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