Application of the Law to the Facts - Math Problem Example

Application of the Law to the Facts Incident 1. Matters pertaining to diplomacy between countries have significant importance and they require professionalism in handling and solving them. It should be considered that the relationship between nations is very critical for the ultimate harmony of the concerned parties and the world as whole. Over time, there have been various processes and procedures that have been applied in resolving diplomatic issues and disputes that have constantly been on the rise from time in memorial. For long, there had never been any form of legal processes that were set to oversee these kinds of issues. However, nations have sort advice from international law whose contributions to the resolving of these international arbitrations have been rampant. (Denza, 2008) In this incident, there are various facts in place, which will set the basis for the resolution of this case. By considering the events that took place and the prevailing conditions, it will be relevant not to prejudice the innocence of neither the ambassador nor the custom officer. It is clear that the ambassador arrived at the airport on a weekend from Brigadoon when he had visited on leave and on official consultations for two weeks. It is good to stress here that despite the fact that he was on leave he was also attending official consultations. The Foreign Ministry should have contacted the airport authority and consequently the custom officers at the airport of the arrival of the ambassador as per the protocol (Denza, 2008). When the ambassador’s Samsonite suitcase was reacted to by the drug detector dog, the customs officer had every right to scrutinize the contents of the suitcase and therefore when the ambassador and his wife wanted to use the Green Channel i.e. ‘nothing to declare’ channel, the customs officer had the right to question him or rather to request him to let him check the suitcases which was among his duties and responsibilities, considering that he was not aware in the beginning that the suitcase belonged to the Ambassador. According to the Vienna convention (1961) article 22, the premise and the property of the head of missions is immune from infringement, entry or even search by the authorities of the receiving state (Evans, 2006). It is important to consider here that a suitcase is a property and therefore the ambassador’s suitcase was immune from search from any authority of our government without his will. It will therefore be considered a breach of the Vienna convention since the customs officer in one way or another forcefully searched the head of mission’s suitcase. Article 27 (3) of the Vienna Convention continues to strengthen the privacy of the head of missions’ property by stating that the Diplomatic bag shall not be opened or detained (Shaw, 2003). I do not want to consider that the suitcase as a Diplomatic bag because apparently it had no official markings on it apart from the baggage label that had a name and the priority tag. Names can be ambiguous and cannot whatsoever be used as an official identification of dignitaries because names can be shared by different people. Assuming that by looking at the name tag the custom officer should have realized that it belonged to the ambassador to Brigadoon is not enough evidence that the officer should have recognized the identity of the person he was dealing with and consequently cease his demands (Shaw, 2003) I want to consider the main issue here as a communication breakdown among three parties involved. The head of missions should have communicated to the Foreign Ministry about his Leave to Brigadoon and the Foreign Ministry should have let the airport authority know about this so that they can as well communicate to the Custom officers about his arrival (Denza, 2008). If this was well communicated, the scenario and the issue at hand would not have occurred. It is also good to identify the defense of the head of missions here, according to article 24 of the Vienna Convention, the violation of the missions’ documents and archives by the authorities of the receiving state at any one time wherever they may be (Shaw, 2003). Again, it will be significant to consider the contents that were in the suitcase. Bearing in mind that the ambassador was out to Brigadoon for a leave as well as on official consultations, there might have been some mission documents with him in the suitcase. If this happens to be the case then we can consider that the provisions of article 24 of the Vienna Convention were violated. In addition, the head of mission and his wife were travelling on diplomatic passport, which means that their visit to Brigadoon was recognized by the sending state and so should be the receiving state. In other words, their travelling was official regardless of the fact that it would be contemplated as personal since it was within that period that the ambassador was on leave. Upon the verification of travel documents at the airport, the airport officials should have intervened in the situation to let the custom officer let go of his concerns with the Samsonite suitcase (Evans, 2006). Again, we have to consider the ignorance of the custom officer and his rigidity in his decision to check the ambassador’s suitcase. Once the ambassador identified himself and of course, we want to consider that he provided the relevant document to prove that he actually was the head of missions of Brigadoon, the customs officer should have relieved his pressure on the couple and let go. The ambassador’s wife had no slightest suspicion because we know that the custom officer was acting on mere observation that the drug detection dog reacted on the ambassador’s suitcase and not on his wife’s. Nevertheless, logic is that upon realization that they were together and in fact a husband and wife, it would be possible that the two bags would contain narcotics. Anyone who has been given duties like those of the customs officer would have reacted in a similar manner given that the identity of the persons involved were presumably not known. However, due to the immunity against any authority of the receiving state that the head of mission and his family accorded to them, it is clear that the customs officer should have let go of his demands upon identification (Evans, 2003) According to article 27 (4) packages constituting the diplomatic bag must bear clear and visible external marks on their character and may contain only diplomatic documents or articles intended for official use (Aust, 2005). The suitcase in this regard had no such identification and it should therefore not have contained any official or diplomatic documents. If in any case the head of missions of Brigadoon had any official or diplomatic documents in his suitcase, then the Convention had not been violated whatsoever because it lacked any visible external identification (Aust, 2005). However, despite all this, the head of mission has his privacy protected by article 27 of the Vienna Convention. According to article 37, his family, which of course includes his wife, is also accorded immunity and privileges as stated under article 29 to 36 if they are not nationals of the receiving state. The immunity and the privileges are due upon arrival to the receiving state and are not lifted until the end of term or until the sending state terminated the mission (Shaw, 2003) It is the responsibility of the all persons enjoying the privileges and immunities to respect the laws and regulations of the receiving state according to article 41of the Vienna Convention (Evans, 2006). The article further strengthens that the persons should not interfere in the internal affairs of the receiving state. Having said that, let’s embark on the situation at hand. It is clear that the customs officer had an obligation to act accordingly upon any suspicion on any person at the airport apart from the ambassadors who have their privacy protected by the provisions of the Vienna Convention of 1961. It therefore happened that he was suspicious about what was contained in the suitcase that apparently belonged to the ambassador who the customs officer did not know or rather whose identity had not been disclosed by the airport authority (Shaw, 2003). However, upon identification, the custom officer should have withdrawn his demands and grant the ambassador his due immunity and privilege. Again, after demanding and actually going ahead and inspecting the suitcase, he found no narcotics as he suspected and again he failed to call for assistance or advice from senior officers. From this point of view, it is clear that the customs officer failed to honor article 27 of the Vienna Convention by treating the head of missions like any other criminal and for this, the ambassador is owed an apology by the Protocol Department of the Foreign Ministry. According to the way issues unfold in this incident, it clearly that the core is a communication breakdown between the parties involved. The head of missions should communicate well with the Foreign Ministry who should take charge and inform airport authority so that they should inform their officers about due action when such cases occur (Aust, 2005) Incident 2 Territorial waters or rather territorial sea was a contentious issue for quite a long time and it was not until 1982 when the United Nations Convention on the Law of the Sea was met. According to article 10 of this Convention, territorial sea is a region extending at most 12 nautical miles from the baseline of a coastal state. The baseline is considered as the mean low-water mark. Articles 17 to 19 provide that this region of the sea is a sovereign region or territory of the state but foreign vessels may be or rather are allowed to enter in what is called innocent passage. The sovereignty extends to the air above it and the seabed below which the portion of the sea rests. Internal waters refer to that region of the sea, here the state has complete jurisdiction and not even an innocent passage to either military, or civilian vessels are allowed. Rivers, lakes and archipelagic waters are regarded as internal waters and a state has absolute jurisdiction of these waters. A contiguous zone on the other hand is a band of water extending from the outer edge of the territorial sea up to 24 nautical miles from the states baseline. At this region a state have limited jurisdiction in an attempt to safeguard its territory against infringement of its custom, fiscal, immigration or its sanitary laws and regulations. This region however could be more or less depending on the underlying conditions. For instance if the one state’s contiguous zone overlaps another’s, then the area can be reduced. There is also, what is referred to as an exclusive economic zone an area which extends to about 200 nautical miles from the state’s baseline. It is considered that a coastal nation has control of all the economic resources in this exclusive economic zone. However, a state cannot prohibit against passage in this region either on the waters, above or even below it. (Nordquist, 1990) Article 5 of the 1988 United Nations Convention on Illicit Drug Traffic requires that a state should confiscate any proceeds from drug offences. Article 6 of the Convention provides a legal basis for the extradition in drug related cases where there is no other extradition treaties among the countries involved. In overall, the convention strengthens its member states towards their fight against narcotics and psychotropic substances. (Roman et al, 2005) With this information at hand, let us now look at the issues in this incident. Our custom had every right to be suspicious that this vessel had on board drugs or narcotics that the crew wanted to smuggle in. They had prior information from the Custom authorities in the last port from which the vessel departed from. Again, they saw the vessel drop an object overboard with a small marker buoy attached. The vessel then turned out of the contiguous zone and out to the sea. It is logical to question why the vessel turned away after dropping that object and why the object was tagged. Considering that this vessel was about 15 nautical miles from the shore, this was way beyond our territorial waters and the customs authority must have had solid evidence to consider pursuing the foreign vessel (Mensah et al, 2007) According to article 33 however, the coastal State can exercise the control necessary to prevent infringement of it customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea (Mensah et al, 2007). This therefore accords the coastal State to safeguard even its zone of contiguous. Under the same article, the coastal state is empowered to punish any infringement of its laws and regulations committed within its territory as well as its territorial waters. At this point, I want to justify the actions of our Customs authority as they were acting on prior information and suspicion. Again, they tried to communicate with the foreign vessel by radio in order to issue the instructions to stop which they failed to respond for one reason or another. On these grounds, anyone would have made the same assumptions that there was something that the foreign vessel did not want to disclose. They had every reason to believe that the foreign vessel was hiding something and most likely, they were trying to traffic some narcotics. The fact that two guys from the fishing boat that retrieved the object dropped by the foreign vessel had previously been convicted for possession of trafficable quantities of drugs gave the customs officers more reasons to justify their pursuing of the foreign vehicle (Natalie & Natalie, 2005) Our customs vessel intercepted the foreign vessel at approximately 50 nautical miles offshore. This is far out of the territorial waters as well as out of the contiguous zone. However, it was within our exclusive economic zone. Articles 55 and 75 rules over the provisions regarding exclusive economic zone (Nordquist, 1990). The provisions do not allow any navigation or flight seizure of foreign vessels. According to these provisions it would have been a breach of the convention but according to the provisions Rights of Hot Pursuit under article 111where by a Coastal States authority may undertake a hot pursuit if they have a good reason to believe that the foreign ship has violated its laws and regulations. The article strongly indicate that such a pursuit must be commenced when the foreign ship is within the State’s territorial waters or its contiguous zone of the pursuing state of which we can justify our Customs authorities action. Considering that our vessel had no capacity to pursue the foreign vessel it is clear that the hot pursuit should have commenced immediately but because we were incapacitated by inability of our Custom vessel for sea going. Our hot pursuit therefore is legal according to this provision. The foreign ship again before its interception had not entered another states territorial waters of its own state or a third state and therefore the pursuit was validated according to article 111 (3) (Nordquist, 1990). Realistically, we have to admit that our Custom officers upon interception of the flag vessel ought to have asked for permission from the flag state before boarding it. This is in accordance to article 1 of United Nations Convention of the Law of the Sea (Mensah et al, 2007). Therefore, the act of our officers to board the foreign vessel, holding the crew and detaining the foreign vessels is also against the Convention given under this article that the vessels when in the high sea are under complete jurisdiction of the flag state. However, we have to stick to the fact that the pursuit began in our contiguous zone and we had every right to believe that the vessel was up to no good because they failed to respond to our call to ask them to stop. We have every right to defend out contiguous zone under article 33. Our main defense here is that our custom officers were acting on their duties. The fact that the ion scan machine detected residual traces of heroin in the cabins of two crewmembers, the crew have to explain the source of those traces and again why they failed to respond to our call to stop. They should as well explain what was contained in the object they dropped in out contiguous zone and why they turned away after dropping the object (Nordquist, 1990) United Nations Convention on Illicit Drug Traffic article 17 rules over illicit drug trafficking in the high sea (Roman et al, 2005). The provision rules that if a Coastal State suspects that a foreign vessel is involved or attempts to undertake illicit drug trafficking, it is supposed to notify the flag state for authorization to take the necessary actions. In this case, our custom officers did not seek permission from the flag state. Considering that the flag state is not a party to the United Nations Convention on Illicit Drug Traffic, this provision does not hold at least for the flag state and therefore our customs officers did not violate any legal rights of the flag state as per the Convention (Roman et al, 2005) We have to hold the fact that our custom officers were acting on solid grounds of facts rather than mere suspicion. It is logical that the foreign vessel were hiding something that our custom officers were trying to uncover. They had prior information from the custom authority of the last departure point that the vessel was likely trying to import some narcotics to our country. Again, the vessel was picked up by a fishing vessel almost immediately and anyone would believe that there was some kind of communication between these two vessels. The fishing vessel could have dropped the package once they realized they were being pursued by the custom vessel. The foreign vessel declined to respond to the attempt to communicate to them by our custom vessel and yet the vessel had traces of residual heroin. Before the release of the foreign vessel, the crew should explain everything because I believe they were up to something and we should hold to these facts. References. Aust, A. (2005). Handbook of International Law. Cambridge: Cambridge University Press. Denza, E. (2008). Diplomatic Law: A Commentary on Vienna Convention on Diplomatic Relations. Oxford. Oxford University Press. Evans, M. D. (2006). International Law. Oxford: Oxford University Press Natalie, K, & Natalie S. K. (2005). Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge: Cambridge University Press. Nordquist, M. H. (1990). United Nations Convention on the Law of the Sea. Leiden: Martinus Nijhoff Publishers. Mensah, T. A., Tafsir Malick Ndiaye, Rudiger Wolfrum. (2007). Laws of the Sea, Environmental Law and Settlement of Disputes. Leiden: Martinus Nijhoff Publishers Roman, G.C., Ahn-Redding, H.,& Simon, J.R, (2005).Illicit drug policies, trafficking, and use the World over. Michigan: Lexington Books Ltd. Shaw, M. N. (2003). International Law. Cambridge: Cambridge University Press. Read More