Issues of customs jurisdiction and powers vis-a-vis international law obligations remain thorny issues in customs operations. Powers that customs can exercise can be limited by international law through conventions and treaties which a state becomes party to especially where people can claim immunity or where vessels are on the high seas and in international waters. International conventions such as the Vienna Convention on Diplomatic Relations, the UN Convention on the Law of the Sea and United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances affect the way in which customs exercises its powers. This report covers two incidents which happened on the weekend of 26th November at the International Airport where the baggage of the Ambassador of Brigadoon was searched by a customs official and at sea where a foreign vessel was pursued and searched in the high seas by customs. In the report I will identify the legal issues and explain whether customs acted within the provisions of international law as provided by different international conventions and proffer suggested recommendations on the way forward.
On the morning of 26th November, the Ambassador of Brigadoon flew into the country through the international Airport. He was accompanied by his wife and both had diplomatic passports. Due to communication breakdown between the Protocol Department of the Ministry of Foreign Affairs and the Brigadoon Foreign Ministry, there were no official delegations to meet the Ambassador at the Airport.
At the airport, a customs officer noted that a drug detector dog reacted to a piece of luggage on the carousel. The bag belonged to the Ambassador. The customs officer without knowing the identity of the Ambassador requested to examine the contents of the bag, the request which the Ambassador declined stating that he has diplomatic immunity and his bags cannot be searched. The officer insisted and searched the bag. Nothing was found in the bag. As a result of the search, the Ambassador has raised a protest with the Ministry of Foreign Affairs. 3. Legal Issues
In analysing this case there is need to examine the major international legal issues which arises. The major issue in this case is whether the customs officer was within his rights at international law and as provided for by the 1961 Vienna Convention on Diplomatic Relations, to stop and search the baggage of the Ambassador of Brigadoon. The other legal issue which needs to analyse is whether both international law practices and the Vienna Convention provides for exceptions in which a diplomatic agent can be searched. Both international customary law and international law practice have traditionally recognised limitations imposed on the sovereignty of the state within its borders when dealing with diplomats and accord the envoy of a foreign state certain rights and privileges in recognition of their status. In terms of international customary law, a diplomatic agent has diplomatic immunity to the laws of the receiving country and hence a diplomat could not be searched, detained or arrested.
The customary principle of diplomatic immunity is also provided for in the Vienna Convention on Diplomatic Relations. Article 29 of the Vienna Convention on Diplomatic Relations (1961) provides that the person of a diplomatic agent shall be inviolable and that he shall not be liable to any form of arrest or detention. This means that a diplomat cannot be searched or detained for any reason. Article 36(2) of the convention further provides that “the personal baggage of a diplomatic agent shall be exempt from inspection unless there are serious grounds for presuming that it contains articles the import or export of which is prohibited by law.” It further provides that such inspection shall be conducted only in the presence of a diplomatic agent or his authorised representative.
The immunity provided...