International Law on Illicit Drug Traffic by Sea - Math Problem Example

International Law on Illicit Drug Traffic by Sea Material Facts from the 1st Incident Both the ambassador of Brigadoon to Saudi Arabia and his wife were travelling on diplomatic passports. In this case, the ambassador accompanied by his wife had arrived back from leave and official consultations to Brigadoon. At the airport, a detector dog reacted to a suitcase which was later collected by the ambassador. This prompted a junior customs officer to inspect the contents of the ambassador’s suite case and that of his wife. The ambassador insisted that he was immune from inspection and later claimed to have been treated like a common criminal. In regard to that scenario, the Director-General of customs need to understand that although the ambassador is immune to inspection of personal luggage, his packages intended for import or export may be inspected under serious grounds as provided for under Article 21 of the Vienna Convention on Diplomatic Relations 1961.1 In this case, the reaction of the detector dog on the ambassador’s suitcase led to serious suspicions of its components. Therefore, the inspection of the ambassador’s case could not be termed as infringement on the rights of the ambassador. As explained by Aust, the spouses of diplomatic agents have immunity from inspection of personal luggage intended for importation or exportation, just as provided to diplomatic officers.2 Similarly, their luggage may be examined where there are serious grounds leading to suspicion of the contents of their packages intended for import or export. In this case, though the detector dog did not react to the case possessed by the ambassador’s wife, the junior customs officer went ahead and inspected her suitcase too. He therefore violated the rights of the wife since there was nothing serious to make him suspect the contents of the case. Legal issues A legal issue arises in this case concerning the implications of the junior customs officer’s inspection of the ambassador’s luggage on the ambassador’s status. Similarly, a second issue is the possibility that the inspection of the luggage constituted infringement of the ambassador’s wife’s rights and entitlement to diplomatic immunity. This begs the question: did the actions of the junior customs staff amount to violation of diplomatic rights of the ambassador and his wife in this incident? Regarding the implication of the inspection of the ambassador’s suit case to his status, it should be clear that the international law regards personal luggage of diplomatic agents as custom inspection exempt during importation or exportation.3 This applies both during informal and formal travels. However, the ambassador failed to understand there may be exceptional cases where the receiving state may be justified to open the bag and examine the same. However, this must only be on very serious grounds such as when there are convincing reasons for presuming that the luggage contains articles whose importation or exportation is prohibited by law.4 In this scenario, the drug detector dog reacted to the piece of luggage at the carousel, something that made the junior customs officer to suspect the contents of the bag. For security reasons of his country, the junior officer was obliged to check the contents of the suitcase. In such rare cases, the Vienna Convention stipulates that the luggage is to be opened only in the presence of the diplomat himself or herself or his/.her authorised agent.5 In this case, it is clear that the luggage belonging to the ambassador and his wife were opened in their presence. Thus, the examination of the packages did not violate the status of the ambassador and his entitlement to diplomatic immunity. Pertaining to the inspection of the suitcase of the ambassador’s wife, the Vienna Convention gives privileges and immunity to spouses of diplomatic agents from inspection of their packages on import or export.6 Additionally, the Convention gives an exceptional right to inspect the packages accompanying spouses of diplomatic agents, where there are serious grounds of suspecting that the contents inside may be illegal. But in this case, the detector dog reacted only to the baggage taken by the ambassador and not for the wife. Though the junior officer explained later that the suitcases were similar to those used to transport drugs, this is not enough to support his grounds. Moreover, the fact that the ambassador was together with his wife, prompting them to be examined together cannot justify the action. This is because both had different diplomatic passports and their cases were to be dealt with separately. Hence this implies that there were no reasons serious enough to warrant inspection of the suitcase of the ambassador’s wife. Relevant Law Several articles of the Vienna Convention are applicable in this case. Article 36(2) of the Vienna Convention is relevant to this scenario as it addresses the issue of immunity of diplomatic officers from examination of their baggage. This law stipulates that such officers are exempted from body search and also inspection of accompanying luggage. But the article permits the receiving state to inspect such packages when there are serious grounds for presuming that it contains articles that are prohibited by the law of the receiving state or controlled by its quarantine regulations.7 This article settles the issue that examination of the ambassador’s case was not a violation of his status under the prevailing circumstance. This article explains further that such inspection should be carried out in the presence of the diplomatic agent or his/her personal representatives. In the incident, the inspection of the ambassador’s suitcase was conducted under his presence. Article 37(1) of the Vienna Convention is also relevant in the scenario especially to do with the inspection of the ambassador’s wife’s suitcase. This Article grants the spouse of diplomatic agent privilege to enjoy immunity just as given to the diplomatic officer under Article 36(2).8 In particular, the junior customs officer would have been justified to inspect the suitcase of the ambassador’s wife only under serious grounds. The Article also implies that the junior staff should have treated the ambassador’s case that of and that of his wife as two separate cases. Applying law to facts The main facts in this case include the inspection of the ambassador’s suite case and that of his wife by the junior customs officer. The purpose of the Vienna Convention on diplomatic relations is to grant diplomatic immunities and privileges to diplomatic officers on which ensures effective performance of their duties and protect their personal dignity. At the same time, the Convention grants the receiving states the right to limit such immunities and privileges under strict and selected cases.9 In this case, it is clear that the junior officer was justified to suspect that the suitcase that the detector dog had reacted to could contain drugs. The ambassador collected the suitcase then took his way via the green (nothing to declare) channel, confirming the junior officer’s suspicion of the contents of the case. As a matter of national security he acted accordingly in approaching the ambassador and conducting the inspection of the bag. Thus the inspection of the ambassador’s luggage does not constitute infringement of his diplomatic rights and immunity in this case. On the other hand, the action of inspection to the suitcase with the wife of the ambassador clearly violated her entitlement to diplomatic rights. As provided for under Section 37(1) of the Vienna Convention, the wife of the ambassador has equal privileges and immunity as those accorded to the ambassador since she was travelling under diplomatic passport.10 There lacks justifying reasons to support the inspection of the luggage by the ambassador’s wife in her specific case case. This means that the inspection of the ambassador’s suitcase was unlawful under international law. Conclusion In my view, the junior customs officer was right in conducting inspection of the suitcase under the possession of the ambassador. Though the Vienna Convention grants immunity of inspection of personal luggage of diplomatic officers, it recognises the customs laws of the receiving state. The Convention allows inspection of such packages when there are justifiable reasons to suspect that the contents of the packages could be illegal or import the same is prohibited by law. Thus, the action of the junior officer to inspect the ambassador’s suitcase is not gross violation of the ambassador’s status and does not invite an apology from the Brigadoon foreign affairs ministry. On the other hand, the wife of the ambassador, who was travelling on diplomatic passport, was entitled to diplomatic immunity just as her husband. Her case ought to have been separated from that of the ambassador. There were no justifiable reasons leading to the inspection of her suitcase. Therefore, the examination of her suitcase was contrary to the provisions of the Vienna Convention and a violation of her entitlement to diplomatic rights. Consequently, she deserves an apology. Facts from the 2nd Incident The foreign-registered vessel had been suspected to be a high risk vessel by WCO’s Regional Intelligence Liaison Office (RILO) and the customs administration in its last port of departure notified the local customs authority about the fact. In turn, the local customs authorities reciprocated accordingly by keeping surveillance of the named vessel at the contiguous maritime zone but outside the territorial area. The foreign-registered vessel did not reach the territorial area but came to a certain point away from territorial zone and dropped an object overboard. This object was later collected by a local fishing boat that had been fishing from the contiguous zone. After pursuing the local boat and recovering the object, the local customs vessel did not find any illegal substances to implicate the foreign-registered vessel in illicit traffic. The authorities were not convinced and went ahead to pursue the foreign-registered vessel. But the United Nations Convention on the Law of the Sea11 gives measures to be taken against suspected foreign vessels only within the jurisdiction of the port state. In addition, the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 198812 permits action to be taken against suspected vessel for illicit traffic but only under reasonable grounds. Interestingly, the local customs vessel pursued on the foreign-registered vessel without substantial evidence and while away from their territorial area. After successful interception of the foreign-registered vessel, the local customs officers boarded the vessel, interviewed the crew and conducted a search on the vessel without seeking clearance from the flag state. As stipulated in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, the local customs officers in operation should have contacted the flag country of the foreign-registered vessel before taking any action on it. They ought to have confirmed the registry and requested for authorization from that state to take appropriate measures in regard to that vessel. After the search, the local officers found that an ions can machine had detected residual traces of heroin in the cabins of two crew members. This could be used as evidence to implicate the foreign-registered vessel and continue to detain it and the crew on board. But the United Nations Convention on the Law of the Sea13 gives attention where successful interception operations at the sea away from territorial areas result in seizure of large quantities of drugs than that on land or in the air. Therefore, the heroin traces detected cannot serve as evidence enough to detain the vessel and the crew. Legal issues One of the legal issues arising in this incident is controversial pursuance of the foreign-registered vessel. Another issue is the violation of international law by the local customs officers through boarding and conducting a search on the foreign-registered vessel without clearance from the flag state. In addition, there seem to be no reasonable grounds for detaining the foreign-registered vessel and the crew who were on board. This leads us to the question: under what circumstances could the local customs authorities have acted on the foreign-registered vessel without violating international law? Regarding the pursuance of the foreign-registered vessel, the Director-General of local customs authority needs to understand that there need to be reasonable grounds for taking such action against a suspected foreign vessel. However, as stipulated under international law, a state may take such action when the foreign vessel is within the jurisdiction of the port state.14 Additionally, the Convention permits such action where there is proof that a vessel is trafficking large quantities of illicit drugs. When such action is taken at a point beyond territorial areas, this Convention requires co-operation with other states. Concerning interception, boarding and searching of the foreign-registered vessel without authorization from the flag country, the local customs administration was entitled to contact the flag country before taking any measures against that vessel. The Director-General of the local customs authority ought to have understood that there is no provision under international law that permits an action against a foreign vessel suspected in illicit traffic without the consent of the flag state. The state of the Director-General in this case is party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 This Convention requires that a state may conduct inspection on a foreign vessel suspected of illicit traffic but only with authorization from the flag state.15 Though the state of Director-General in this incident is dealing with a non-party state, the authority is required to abide by the provisions of this Convention. Going by the circumstances, the local customs authorities do not have a right to detain the vessel and the crew. Though the heroin traces detected could be used as evidence to implicate the foreign-registered vessel within the local custom laws, this would not apply in this case. It would apply if the vessel was found within the territorial area of state of the Director-General. Also, the local customs authorities would have the right to detain the foreign vessel and the crew if they had seized large quantities of narcotic drugs than those on the land or in air from the vessel as stipulated under as stipulated in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 Relevant law Article 108 of United Nations Convention on the Law of the Sea16 imposes upon states the duty to cooperate in the suppression of illicit drug trafficking in high sea areas. However, as provided for in the same article the law is only applicable within the jurisdiction of the port state. In addition, this article permits interception of large quantities of narcotic drugs than those on lands or in air beyond territorial areas of nations. Therefore, it confirms that boarding and searching of the foreign vessel while it was away from the country’s territorial areas is contrary to international law. Moreover, the article explains why the residual traces of heroin that were detected in the cabins of two crew members could not be used as an evidence to implicate the vessel in drug trafficking and consequently continue to detain them. Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 deals with co-operation among parties under authorization of the flag state to search and board vessels involved in illicit drug trafficking.17 The Article provides that if evidence about involvement in illicit traffic is found, appropriate action can be taken with respect to the vessel, persons and cargo on board. In addition, it requires that such measures be taken after confirming the registry of the vessel and acquiring permission from the flag state. This law is relevant in this case particularly due to the fact that action was taken against the foreign-registered vessel without seeking authority from the flag state. In addition, the local custom officers should not have acted without having gathered substantial evidence as required by this Convention. Applying law to facts The main fact in this incident is that the dealings of the customs vessel in pursuing, boarding and arresting the foreign-registered vessel were unlawful with regard to international law. According to International Maritime Organization (IMO), dependence on limited proof by local customs authorities and consequential pursuance of the foreign-registered vessel is contrary to international law.18 In addition, boarding and searching of the foreign-registered vessel is contrary to the provisions of Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988. In this case, the flag country is justified to protest against the detention of their vessel and the crew on board. There is no law to support the action by local customs authorities in detaining the foreign vessel and the crew under international law in this case. Thus, the local custom authorities will have to release both the vessel and the crew immediately if they are to abide by provisions of international law. Conclusion There is need for the local customs administration to understand the extent of their authority in dealing with illicit drug traffic by sea as provided for within the international law without infringing on the rights of others. They need to learn that beyond the country’s territorial zone, the efforts to fight illicit drugs traffic requires co-operation among states. At the same time, the Director-General need to understand that before any action is taken against suspected foreign vessels of illicit traffic, the flag state of the vessel should be contacted and permission to continue granted. In this regard, the local authorities have no choice but to release the foreign registered vessel and the crew. No explanation to the flag country of the flag country will be satisfactory under international law. However, it is essential for the local ministry of foreign affairs to contact the flag state of that vessel and plead their case. This would prevent the flag state from lodging a formal protest. References Aust, A, Handbook of international law, Cambridge University Press, New York, N.Y (2010), p. 134 Commonwealth Consolidated Acts, Diplomatic Privileges and Immunities Act 1967, Commonwealth Publications, Vienna, Austria, 1967, Viewed 8 March 2010, http://www.austlii.edu.au/au/legis/cth/consol_act/dpaia1967363/sch6.html International Maritime Organization (IMO), Implications of the United Nations on the Law of the Sea for the International Maritime Organization, Albert embankment, London, 2008, p. 44, Viewed 8 March 2011, United Nations, Action to strengthen international cooperation to control precursors and their substitutes used in the illicit manufacture of controlled substances, United Nation Publications, New York, N.Y, 1996, Viewed 8 March 2011, Vienna, S. K, An introduction to public international law, PHI Learning Pvt. Ltd., University of Delhi, 2004, p 184 Read More