The Legal Foundations of INTERPOL

Rutsel Silvestre J Martha, Courtney Grafton, Stephen Bailey

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509901111
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Since the publication of the extremely well regarded first edition of this title, the legal regime which forms the basis for INTERPOL has changed significantly due to increasing criticism and calls for reform. This timely new edition provides a complete update to reflect the significant developments within the Organization since 2010. This new edition also examines INTERPOL's internal and external law and situates INTERPOL's assistance to its members in the legal regime of responsibility. It is the first text to undertake this task. It draws on the jurisprudence of the Commission for the Control of INTERPOL's Files and the authors' extensive experience before this body to discuss in great detail how an individual can challenge INTERPOL's interventions (including the issuance of notices) on the basis of the Organization's internal rules. It also meticulously describes the procedures under which INTERPOL members might challenge INTERPOL's interventions and how an individual can hold INTERPOL responsible for breaches of its external law. Retaining the clarity of expression and expert analysis that were hallmarks of the first edition, this book is required reading for practitioners and academics alike. It provides academics with a valuable case study on the creation of an international organisation and the responsibility of international organisations, and it offers practitioners a forensic analysis of how to challenge INTERPOL and its actions.

PART I

1

The Concept of International Organisations

As stated in the Introduction, unlike domestic legal systems, the international community has no prescribed legal and administrative process of incorporation of international organisations. This contributes to the divergence of views that exists with regard to the very concept of an international organisation, its definition and the legal requirements for its existence. The lack of consensus concerning the concept of an international organisation is particularly evident in the work of the International Law Commission (‘ILC’) and the resulting multilateral agreements containing provisions referring to international organisations. The ILC had deliberately abstained from adopting a definition of “international organisation” ‘in order to avoid starting interminable discussions on theoretical and doctrinal questions, on which there were conflicting opinions in the Commission and the General Assembly, as was only natural’.¹ Instead, Article 2(1)(i) of the 1969 Vienna Convention on the Law of Treaties (‘VCLT’) and Article 2(1)(i) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (‘VCLT-IO’) employ a minimalist and rather tautological definition according to which ‘“international organization” means an intergovernmental organization’.² According to the ILC’s interpretation in 2002, the meaning of the term ‘intergovernmental organizations’ was to be understood as ‘organizations that States have established by means of a treaty or, in exceptional cases (such as that of [the Organization for Security and Co-operation in Europe (‘OSCE’)]), without a treaty’.³

In the context of codifying the principles of the responsibility of international organisations, the definition of an international organisation was gradually elaborated, reflecting various aspects of the accepted notion of international organisations. The initial proposal by Giorgio Gaja, the Special Rapporteur on the responsibility of international organisations, suggested that an international organisation should be referred to as ‘an organization which includes states among its members insofar as it exercises in its own capacity certain governmental functions’.⁴ The definition offered by the ILC Working Group, however, was more in line with traditional approaches; it referred to an international organisation as ‘an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality distinct from that of its members’.⁵ It also clarified that international organisations ‘may include as members, in addition to States, other entities’.⁶ With the deletion of the phrase ‘distinct from that of its members’, this definition was accepted by the ILC in the text of the Draft Articles on the Responsibility of International Organizations in 2011 (‘DARIO’). Article 2(a) of the DARIO reads as follows:

‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.⁷

The ILC does, however, note that while this definition is considered appropriate for the purposes of the DARIO, it is not intended as a definition for all purposes.⁸ A largely similar definition can be found in the work of the International Law Association (‘ILA’) on the accountability of international organisations. The ILA Committee on the Accountability of International Organisations speaks of ‘intergovernmental organisations in the traditional sense, ie, created under international law by an international agreement amongst States, possessing a constitution and organs separate from its Member States’.⁹ The difference in the definitions might be attributed to the fact that the possession of organs is clearly an inherent element of being an organisation, so it is implicitly included in the ILC’s definition of international organisations.

Despite the absence of a prescriptive definition of international organisations under general international law, there is considerable consensus, or at least a converging opinion, on the constitutive elements of international organisations.¹⁰ In scholarly writings, international organisations are typically defined as legal entities created by (mostly) States, usually on the basis of a treaty with at least one organ able to express a will distinct from that of its members, possessing its own international legal personality and entrusted to fulfil some common, typically public or governmental, tasks:

… to qualify as an international organisation, it must have the following characteristics:

its membership must be composed of states and/or international organisations;

it must be established by treaty or other instrument governed by international law, such as a resolution adopted in an international conference;

it must have an autonomous will distinct from that of its members and be vested with legal personality; and

it must be capable of adopting norms (in the broadest sense) addressed to its members.¹¹

However, within this general definition exist substantial doctrinal debates. It is, for instance, sometimes debated whether the existence of a will distinct from that of its members (volonté distincte) should be ‘[t]he basic criterion for distinguishing an international organisation from other entities’¹² or whether it is evidence of the existence of an international organisation.¹³ A debate also exists as to whether international legal personality is objective or derived from the will of members to confer such personality.¹⁴ Similarly, opinions differ as to whether the fulfilment of public, governmental or sovereign tasks is a requirement, since some international organisations perform functions that are difficult to classify in such terms (eg, the Organization of the Petroleum Exporting Countries), but it is undisputed that they are international organisations.¹⁵

Notwithstanding these debates, it is clear from the work of the ILC, the ILA, the IDI and various academic writers that two elements are deemed crucial for the qualification of an entity as an international organisation. One is that its membership comprises States or other subjects of international law,¹⁶ such as existing international organisations. The latter is evidenced by the membership of the European Union in a number of international organisations, among them the World Trade Organization.¹⁷ The second (related) requirement is the need for an act of establishment on the basis of a treaty or other international instrument. These two criteria help to distinguish international organisations from other entities operating internationally and set up on the basis of, and governed by, national law, such as non-governmental organisations, transnational corporations or multinational enterprises.¹⁸

Constituent instruments of international organisations have been described as conventions, charters, constitutions, statutes, articles of agreement, etc. It is also accepted that international organisations can be founded by implicit agreement, which might be expressed through parallel domestic legislation, such as the Nordic Council, which was established by decisions of the parliaments of Denmark, Iceland, Norway and Sweden,¹⁹ or by a resolution adopted during an inter-State conference, such as the UN Relief and Works Agency for Palestine Refugees in the Near East.²⁰ The picture that emerges from these examples is that, as long as the constituent act can be interpreted as an expression of the will to create an international organisation, even though achieved through an agreement in highly simplified form, the requirement of establishment by international agreement will be fulfilled.²¹ It can, therefore, be said that the requirement that an international organisation be established by treaty does not necessarily mean establishment by formal treaty.²²

This aligns with the general position that any legally valid written agreement under international law, by whatever name, may qualify as a treaty in the generic sense of the VCLT.²³ It may also be that the establishment of an international organisation is not in written form, so the agreement falls outside the scope of the VCLT but is nevertheless a treaty under international law.²⁴ Indeed, with specific references to the constituent instruments of international organisations, many academics have made it clear that the founding instrument of an international organisation does not need to be a formal treaty. For instance, after studying various examples, Barberis concludes:

[t]outefois, dans tous les exemples cites, bien qu’il n’y ait pas de traite formelle ou que celui-ci n’ait pas existe lors de la création de l’organisation internationale, il a eu sans aucun doute possible accord de volontés entre les États qui sont à l’origine de la constitution de l’organisation.²⁵

Similarly, Amerasinghe speaks of ‘establishment by some kind of international agreement’.²⁶ Klabbers distinctly states that, whether the organisation is created by treaty or some other legal act, ‘[t]he importance of this characteristic … is above all to indicate that the creation of an international organisation is an intentional act’.²⁷ The ILC has also endorsed the view that international organisations do not need to be established through a formal treaty but may be set up by an informal or even implicit agreement governed by international law. The ILC expressly acknowledged that ‘forms of international cooperation are sometimes established without a treaty’, such as the OSCE or the Pan American Institute of Geography and History.²⁸ It is for this reason that the DARIO defines an international organisation as including those organisations established by any ‘other instrument governed by international law’.²⁹

In conclusion, it seems justified to say that, for an international organisation to exist, its constituent instrument ought to be an international legal instrument of some sort which not only satisfies the criteria for validity of an international legal act³⁰ but also is governed by international law and contains an expression of an intention to create a subject of international law.

¹‘1925th meeting – 15 July 1985’ in Yearbook of the International Law Commission (1985) Vol I, 284.

²VCLT (adopted on 23 May 1969, entered into force on 27 January 1980) 1155 UNTS 331; VCLT-IO (adopted on 21 March 1986, not yet in force). This was also the definition adopted in the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character (adopted on 13 March 1975, never entered into force) UN Doc A/CONF.67/16.

³‘Report of the Commission to the General Assembly on the work of its fifty-fourth session’ in Yearbook of the International Law Commission (2002) Vol II, Part Two, 94, para 469...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Preface to the Second Edition
• Contents
• Abbreviations
• Table of Cases
• Introduction
• PART I
• PART II
• Appendix 1: The Constitution of the International Criminal Police Commission, 1923
• Appendix 2: The Constitution of the International Criminal Police Commission, 1939
• Appendix 3: The Constitution of the International Criminal Police Commission, 1946
• Appendix 4: The Constitution and General Regulations of the ICPO-INTERPOL, 1956
• Appendix 5: Statement to Reaffirm t>he Independence and Political Neutrality of INTERPOL, 2006
• Index
• Copyright Page