Assessment item 2 - Application of the law to a fact situation
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Due Date: 06-Apr-2020
Return Date: 30-Apr-2020
Submission method options: EASTS (online)
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It is not uncommon for a legal adviser to be asked to provide guidance on whether Customs has acted in accordance with the law. In this assignment, you are given a (fictional) set of facts relating to the exercise of jurisdiction by Customs officers. This action has led to a formal complaint by another Government. Your task will be to provide a brief to the Director-General setting out whether or not the Customs officers have acted lawfully (in accordance with international law), the reasons for your conclusion, and any proposed remedial action that Customs should take.
Assignment 2 Problem
It is Monday morning, 6th April, 2020. You have just arrived at work in the customs administration of the country of Catdom, where you are the Director, Border Management. On your desk there is a report of an incident which happened over the weekend. The report is summarised below. Your assistant informs you that the Director General has requested that you provide him with your comments on the incident, which involves issues of international law. Please provide your written report to the Director-General, analysing the international law issues involved, the legality of the actions taken by your officer, and your recommended course of action for the Director-General to take. Your answer should cite the relevant sources of law, as well as the principles involved. The answers should address international law issues only, without reference to Catdom domestic law. Your report should include references, both in-text and end of text in the form of Bibliography.
Please note that the answer should not exceed 2000 words altogether.
Incident at Johnsonville International Airport
On the morning of 4th April, 2020, the Ambassador of Northbury flew into Johnsonville International Airport, in your national capital, after spending two weeks in Northbury on leave and official consultations. The Ambassador has been representing Northbury in Catdom for 18 months, is half way through his official 3-year posting and was travelling on a diplomatic passport issued by the Government of Northbury. The passport contains a full and valid diplomatic visa issued by the Government of Catdom.
The Ambassador was accompanied by a new member of the Northbury consular staff, who is coming to Catdom to take up her posting for the first time. She will be working in the Consulate in the port city of Selwood. She was also travelling on a Northbury diplomatic passport containing a Catdom visa which stated inter alia that she was entitled to full consular privileges and immunities.
The Protocol Department of your Foreign Ministry had not notified Customs of the Ambassador’s return nor of the arrival of the consular staff member. However, this is not unusual as the Ambassador had been away on leave and the consular officer was quite junior and would not normally be met on arrival. Foreign Ministry protocols require only that Customs be notified when diplomatic staff are arriving to take up their posting for the first time. There was no Embassy official in the airport, although an Embassy car (with the Northbury flag on display) and a driver were waiting in front of the terminal. Not surprisingly, Customs staff at the airport were not aware of this.
The Ambassador and the consular officer passed through Immigration control quickly and easily. They then proceeded to the baggage hall. While the Ambassador and his colleague were waiting to collect their luggage from the baggage carousel, a Customs drug detector dog entered the hall with its handler and proceeded to the carousel where the luggage from the Northbury flight was just beginning to emerge. The dog reacted to a piece of luggage on the carousel, and the dog handler immediately advised another customs officer of this reaction. The Ambassador and his colleague were talking to each other at the time and did not notice the dog in operation or its reaction to the luggage.
The Customs officer noted that the piece of luggage was a standard Samsonite suitcase. It had no official markings on it, but it did have a baggage label giving the owner’s name, a normal airline baggage tag and a Priority/First Class tag. The officer was aware that there had been previous seizures of drugs from suitcases of this type and in some of these instances the couriers had been flying First or Business Class.
The officer watched to see who collected the suitcase. It was retrieved from the carousel by the Ambassador, who then proceeded towards the exit, via the green (nothing to declare) channel, with his colleague who had collected two bags from the carousel. The dog had not reacted to these two bags. (Passengers arriving in Catdom do not submit a written declaration – the law provides that a declaration of nothing-to-declare is made by virtue of the passenger’s choice of the Green Channel).
The officer, not knowing the identity of the Ambassador or his colleague, intercepted them and asked them to go with him to a baggage examination bench, stating that he had grounds to examine their luggage. The Ambassador politely declined, stating that he was the Ambassador, that the luggage was his own, and was therefore immune from examination under the Vienna Convention. He also informed the officer that the bags of his colleague were also immune from inspection.
Undeterred, the officer then repeated that he had reasonable grounds to inspect the luggage. Despite the Ambassador’s protests – and protests from the Consular officer as well – the Customs officer insisted that both the Ambassador’s bag and the two bags of the consular officer be presented for inspection. At no stage, despite the Ambassador’s request to speak to a superior officer, did the officer seek advice or assistance.
The officer directed the Ambassador and the consular officer to the baggage benches. He proceeded to open the Ambassador’s suitcase and to examine the contents and the bag itself while the Ambassador – visibly angry by this stage - watched. At no stage did the Ambassador agree to the suitcases being opened, but repeatedly asked the officer to desist. The officer found nothing except clothing and personal effects in the suitcase. Upon completing the rummage, the officer told the Ambassador that he could repack the case and leave the hall.
He then instructed the consular officer to put her bags on the bench. At this point, she held up one bag and said: “This is a diplomatic bag containing documents belonging to the Embassy. I refuse to open it and will not allow you to open it.” The Customs officer noted that there was a seal on the bag and said to the passenger: “If you will not allow me to open it, I will have to x-ray it to satisfy myself that it contains documents only.” The Ambassador immediately protested that it was clearly marked as a diplomatic bag and therefore could not be inspected in any way. Despite this protest, the officer put the bag through an x-ray machine. The image revealed only papers. The officer then returned the bag to the consular officer. He then opened her luggage and examined the contents, but again found only personal effects and clothing.
The Ambassador and the consular officer then both left the baggage hall, stating they would lodge a formal protest about the way in which they had been treated. Later the same day, the Ambassador lodged a formal protest with the Protocol Department of the Foreign Ministry, stating that he had “been treated like a common criminal” and demanding an apology both for himself and for his colleague, who, he said, had undergone a most unsatisfactory introduction to her country of posting.
In light of the complaint, the customs officer concerned had been asked for his version of what happened. He advised that as the Ambassador’s suitcase was clearly not a diplomatic bag, he was entitled to open it. It was a Samsonite case of a kind previously used for drug smuggling, it carried a first class tag which was also suspicious and the dog had reacted to it. He said that he believed it was “irrelevant” that the passenger was a diplomat. He said that when he became aware that the consular officer was carrying a diplomatic bag, he had decided not to open it – “as that would have been wrong” – but to x-ray it. He had opened her personal luggage as she was travelling with a person whose luggage had been the cause of a drug dog reaction and he believed that they could have been working together to bring drugs into the country.
The Foreign Ministry has referred the matter to the Director-General, with a request for an explanation of what the Ministry said “appeared to be a gross violation of the Ambassador’s status and of his colleague’s entitlement to consular immunity”. Advise the Director-General on how he should respond to the Ministry. In your advice, outline the international law issues involved, bearing in mind that Catdom and Northbury are both parties to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, and advise the Director-General on the most appropriate course of action to be taken.
Structure of your Report
Your brief should be structured in 4 parts as follows:
Part 1 – Introduction – Up to 250 words
Provide a succinct pen picture of the material facts in the case and the purpose of the brief.
Part 2 – Relevant Legal Principles– Up to 500 words
Identify the key legal issues at stake, the principles of international law which are relevant, and the sources of law from which those principles have been derived. This should include clearly referenced identification of any key Conventions and/or principles of customary law, together with any controversial or uncertain aspects of the law.
Part 3 – Application of Law to Facts – Up to 1000 words
Consider in detail whether or not the acts of the Customs officers concerned have breached the principles of international law which you have identified in Part 2, the seriousness of those breaches (i.e. what are the consequences of any breaches for your Government and Customs?) and the impact of Customs’ actions on the complainant.
Part 4- Conclusions – up to 250 words
Conclude your paper by summarising your conclusions as to Customs’ actions and advising on a suitable response to the complainant.