Membership of INTERPOL

The International Criminal Police Organization-INTERPOL (“INTERPOL”) General Assembly is scheduled to meet in India in October 2022 for its 90^th ordinary session. On the eve of the opening of the session, the INTERPOL Executive Committee must finalise the agenda for the session. One item that should be on the agenda is membership of INTERPOL.

Last year, during the General Assembly’s 89^th ordinary session, INTERPOL announced the admission of the Federated States of Micronesia (“Micronesia”) as the 195^th member of INTERPOL. Micronesia’s admission should be celebrated: it closes a gap in secure global police communication and bolsters worldwide efforts of crime prevention. However, it should not be all celebrations. The admission of Micronesia as a member of INTERPOL was formalised in General Assembly resolution GA-2021-89-RES-01. Although the operative paragraphs of GA-2021-89-RES-01 are innocuous, the preambular paragraphs are problematic because they endorse General Assembly resolution GA-2017-86-RES-01. The latter resolution interprets the term “country” in Article 4 of the 1956 INTERPOL Constitution (“Constitution”) to mean “state”, resolves that future membership of INTERPOL shall be open only to States, and stipulates that the country requesting membership “should explain that it meets the conditions for statehood”.

For the reasons set out below, I am of the view that, properly understood, the members of INTERPOL are countries and membership of INTERPOL is not (and should not be) dependent on statehood.

THE PROPER INTERPRETATION OF THE CONSTITUTION

Membership of INTERPOL is governed by the Constitution, which must be interpreted in accordance with the customary international law rules of treaty interpretation.

Ordinary meaning, context, and object and purpose

The ordinary meaning of the terms of Article 4 of the Constitution provides the starting point for determining who are the members of INTERPOL. Article 4 provides, “[a]ny country may delegate as a Member to the Organization any official police body whose functions come within the framework of activities of the Organization”.

The ordinary meaning of the terms of Article 4 suggests that “official police bodies” are the members of INTERPOL. Indeed, in Omari v The Int’l Criminal Police Org., 21-1458-cv (2d Cir. May 24, 2022), the United States Court of Appeals for the Second Circuit found that “membership in Interpol formally belongs to the delegated ‘official police body’” (at 15). The Court reached this conclusion on the basis of Article 4 alone. It could also have invoked Article 45 of the Constitution, which provides that “[a]ll bodies representing the countries mentioned in Appendix I shall be deemed to be Members of the Organization …”.

However, the Court of Appeals did not consider the meaning of the term “delegate” in Article 4, which suggests that the “country” is somehow superior to the “official police body”: to “delegate” is to “[s]end or commission (a person) to act as a deputy or representative” (The New Shorter Oxford English Dictionary, Vol. I (1993), 623). Nor did it consider the meaning of the term “representing” in Article 45: to “represent” is to “[t]ake the place of (another); be a substitute in some capacity for; act or speak for (another) by a deputed right” (Shorter Oxford English Dictionary, Vol. 2 (2002), 2538).

In fact, further context establishes that the “country” does delegate to the “official police body”, and it suggests that the members of INTERPOL are countries:

• Article 7 of the Constitution concerns representation of the “Member” at sessions of the General Assembly. It provides, “[e]ach Member may be represented by one or several delegates; however, for each country there shall be only one delegation head, appointed by the competent governmental authority of that country” (emphasis added). When Article 7 speaks of “country”, it does so by reference to “Member”. Article 7 does not read, “[e]ach Member may be represented by one or several delegates; however, for each official police body there shall be …”. For Reuter, Article 7 is a clear indicator that the members of INTERPOL are countries, not official police bodies (‘Problèmes juridiques relatifs au statut de l’OIPC-Interpol’ in INTERPOL–Les textes fondamentaux de l’Organisation internationale de police criminelle (2001), 45, 47-48).

• Articles 31 and 32 of the Constitution provide that INTERPOL “needs the constant and active co-operation of its Members”, and, “[i]n order to ensure [this] cooperation, each country shall appoint a body which will serve as the National Central Bureau”. The use of “country” in Article 32 is in reference to “Members” in Article 31. And the relationship of superiority foreshadowed by Articles 4 and 45 is clear in Article 32: the National Central Bureau is the official police body appointed by the country.

The term “State” is not used in the Constitution, save for in Appendix I. Appendix I provides, “[l]ist of States to which the provisions of Article 45 of the Constitution shall apply” and then sets out a list.

Read together, Article 45 (“… the countries mentioned in Appendix I …”) and Appendix I might be said to support the argument that the term “country” in the Constitution means “State”, such that the members of INTERPOL are States.

However, the content of the list in Appendix I does not support this argument because it includes non-State entities (e.g., the Netherlands Antilles (which dissolved in 2010)).

The object and purpose of the Constitution also does not support this argument.

In its Nuclear Weapons Advisory Opinion, the International Court of Justice (“ICJ”) recognised that the constituent instrument of an international organisation “can raise specific problems of interpretation”, such that “the objectives which have been assigned to [the international organisation] by its founders” and “the imperatives associated with the effective performance of [the international organisation’s] functions” may deserve “special attention” in the interpretative process (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para. 19).

These elements evoke the principle of effectiveness (Brölmann, ‘Specialized Rules of Treaty Interpretation: International Organizations’ in The Oxford Guide to Treaties (2^nd edn, 2020), 524, 528-531; Kadelbach, ‘Interpretation of the Charter’ in The Charter of the United Nations: A Commentary, Vol. I (3^rd edn, 2012), 71, 79-80), which the International Law Commission considers (at 201) to be embodied in an “objects and purposes” (and good faith) interpretation. Indeed:

in interpreting the constituent document of an international organization, the effective fulfillment of the organization’s functions is of major importance; thus the object and purpose rule will in these cases be geared almost exclusively towards the effective performance of the organization and its organs (Dörr, ‘Article 31: General rule of interpretation’ in Vienna Convention on the Law of Treaties – A Commentary (2^nd edn, 2018), 559, 575 (bold omitted)).

INTERPOL’s two aims are prescribed in Article 2 of the Constitution. One of these aims is “[t]o ensure and promote the widest possible mutual assistance between all criminal police authorities …”. The equiparation of “country” and “State” would undermine this aim: it would militate against police cooperation with independent police authorities of territorial units which are not broadly regarded as States, but which operate at the international level. This would give rise to gaps in secure global police communication and compromise worldwide efforts of crime prevention.

The exclusion of Taiwan from INTERPOL is a good example. Taiwan was a member of INTERPOL between 1961 and 1984. On 17 May 1984, the People’s Republic of China (the “PRC”) applied for membership in INTERPOL. Uniquely, the PRC’s membership application was subject to very particular conditions, including that INTERPOL recognise the PRC as the sole representative of all the territory constituting the Chinese State. The PRC’s application was accepted at the General Assembly’s 53^rd ordinary session in 1984, and, pursuant to the terms of its application, the PRC became the sole representative of the Chinese State. Taiwan has since been excluded from INTERPOL. As a result, Taiwan – an area with a population of approximately 23.5 million and which typically sees some 72 million passengers travel through its airports each year – is unable to provide assistance to (or receive assistance from) criminal police authorities through INTERPOL, as envisaged by Article 2 of the Constitution. In short, there is a significant blind spot in international police cooperation.

For completeness, I note that the French text of the Constitution does not support the argument that the term “country” in the Constitution means “State”, such that the members of INTERPOL are States: both Article 45 and Appendix I of the French text use the term “pays” (countries), not “etats” (States). The French, English and Spanish texts of the Constitution are “regarded as authoritative” (Constitution, Article 43).

The international organisation’s own practice

According to the ICJ, the interpretation of a constituent instrument of an international organisation must also take into account the international organisation’s “own practice” (Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66, para. 19. See also Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (Advisory Opinion) [1960] ICJ Rep 150, 169; South-West Africa—Voting Procedure (Advisory Opinion) [1955] ICJ Rep 67 (Separate Opinion of Judge Lauterpacht), 106).

INTERPOL’s own practice suggests that the members of INTERPOL are countries, not official police bodies or States. For example:

• The General Assembly adopted its Rules of Procedure in 1996. They have subsequently been amended a number of times. Article 5(2) of the Rules of Procedure states that invitations to a General Assembly session “shall … be sent to any countries that have indicated their intention of applying to join the Organization at the General Assembly session”, and Article 7(4) states that “[t]he head of a delegation may appoint a member of that delegation to act and vote on behalf of the country he represents …” (emphasis added).

• INTERPOL notes in General Assembly resolution AG-2006-RES-04 that the Constitution was adopted in 1956 and “the following elements are included [in the Constitution]: (a) [t]he Organization as a standing intergovernmental organization … independent of the countries which gave birth to it; … (c) [t]he freedom of member countries to appoint their delegates to the [General Assembly]” (emphasis added).

• Since 1956, INTERPOL has approved membership requests from Aruba, Curaçao and Sint Maarten (which are neither official police bodies nor States).

Preparatory work

Finally, the preparatory work of the Constitution reveals that the proposal for “States” to be considered the members of INTERPOL was rejected (see a consideration of the preparatory work in Martha, Grafton and Bailey, The Legal Foundations of INTERPOL (2^nd edn, 2020), 73).

GA-2017-86-RES-01

While the Constitution is not free of ambiguities, the foregoing interpretation suggests that the members of INTERPOL are countries.

So how does GA-2017-86-RES-01 bear on this interpretation?

The background to, and content of, GA-2017-86-RES-01 is as follows. Faced with controversial membership requests from Kosovo and Palestine, INTERPOL decided to revisit the issue of membership in 2016. It therefore appointed Hans Corell as an Adviser to make “recommendations on the process for membership of INTERPOL”. Mr Corell obliged and submitted a report in 2017 to the 86^th ordinary session of the General Assembly. Further to this report, the General Assembly adopted GA-2017-86-RES-01, which notes that it is an “interpretative resolution” and (as mentioned above) interprets the term “country” in Article 4 of the Constitution to mean “state”, resolves that future membership of INTERPOL shall be open only to States, and stipulates that the country requesting membership “should explain that it meets the conditions for statehood”.

It might be said that GA-2017-86-RES-01 is a subsequent agreement between the parties to the Constitution regarding the interpretation of the Constitution or the application of its provisions. If it is, it must “be taken into account” in the interpretative exercise (see Tladi for discussion on the weight to be given to subsequent agreements within the meaning of Article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties (“VCLT”)).

There is clear authority that subsequent agreements within the meaning of Article 31(3)(a) of the VCLT may arise from or be expressed in acts of plenary organs of international organisations (Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted on 24 April 2012, para. 262). However, while GA-2017-86-RES-01 is a resolution of the plenary “body of supreme authority in the Organization” (Constitution, Article 6), it is questionable whether it constitutes a subsequent agreement within the meaning of Article 31(3)(a) for two reasons:

• It is unclear whether GA-2017-86-RES-01 expresses an agreement between the (i.e., all) parties to the Constitution regarding the interpretation of the Constitution or the application of its provisions.

I am aware of a number of parties to the Constitution which informed Mr Corell of their reservations about interpreting the term “country” to mean “state”, and GA-2017-86-RES-01 was adopted by a mere “simple majority” pursuant to INTERPOL’s rules (i.e., Constitution, Article 14; General Regulations, Article 19; Rules of Procedure of the General Assembly, Article 37(1)). In the absence of unanimous agreement, there is not a subsequent agreement within the meaning of Article 31(3)(a) (Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted on 24 April 2012, paras. 262-268; Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226, paras. 46 and 83).

(This is not to say that GA-2017-86-RES-01 is necessarily irrelevant if it does not express an agreement between the parties to the Constitution regarding the interpretation of the Constitution or the application of its provisions; it may constitute a less weighty practice for the purposes of interpretation (see International Law Commission, ‘Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, with commentaries 2018’, Commentary to Conclusion 12, para. 32).)

• GA-2017-86-RES-01 is inconsistent with the ordinary meaning of the terms of Article 4 of the Constitution in their context and in the light of the object and purpose of the Constitution.

It is arguable (although not unanswerable) that if the parties to the Constitution have moved beyond the textual, contextual and teleological frame of Article 4, they are not in the realm of (Article 31(3)(a)) treaty interpretation, but in the realm of treaty modification (see Hafner, ‘Subsequent Agreements and Practice: Between Interpretation, Informal Modification, and Formal Amendment’ in Treaties and Subsequent Practice (2013), 105, 114; Dörr, ‘Article 31: General rule of interpretation’ in Vienna Convention on the Law of Treaties – A Commentary (2^nd edn, 2018), 559, 594). If this is correct, GA-2017-86-RES-01 reflects an attempt to modify the Constitution under the cloak of interpretation. Attempts to use ‘interpretation’ as an end-run around available amendment procedures are not unknown in international law (International Law Commission, ‘Second report on subsequent agreements and subsequent practice in relation to the interpretation of treaties, by Mr. Georg Nolte, Special Rapporteur’, 26 March 2014, UN Doc. A/CN.4/671, para. 156). But, at least so far as membership of INTERPOL is concerned, such attempts should be resisted. Suffice to say, the circumvention of (inter alia) Article 42 of the Constitution, Article 56 of the General Regulations and Articles 43-44 of the Rules of Procedure of the General Assembly – which prescribe in some detail the procedure to be followed for an “amendment to” or “modification of” the Constitution – raises issues of legitimacy, if not legality.

Drawing all of these threads together, it is doubtful that GA-2017-86-RES-01 (1) alters the interpretation that the members of INTERPOL are countries (not official police bodies or States) or (2) should be considered to render future membership of INTERPOL dependent on statehood.

STEPPING BACK A MOMENT

More broadly, there is helpful authority which indicates that the term “country” need not mean “State”.

In Case T-370/19 Kingdom of Spain v European Commission, the General Court had to decide whether Commission Decision of 18 March 2019 on the participation of the National Regulatory Authority (“NRA”) of Kosovo in the Body of European Regulators for Electronic Communications (“BEREC”) infringed Article 35 of Regulation 2018/1971. Article 35(2) of Regulation 2018/1971 provides (in general terms) that BEREC “shall be open to the participation of regulatory authorities of third countries with primary responsibility in the field of electronic communications …”. The Commission decided that the NRA of Kosovo could participate in BEREC.

In the General Court, Spain’s first plea in law was that (1) Article 35(2) of Regulation 2018/1971 permits the NRA of a “third country” to participate in BEREC and the concept of “third country” is “equivalent” to that of “third State”, (2) Kosovo is not a State, and, as a consequence, (3) the decision to permit the NRA of Kosovo to participate in BEREC infringes Article 35(2) (at paras. 21-23 and 26-27).

The General Court rejected Spain’s argument. In so doing, it found, “international society is not made up of ‘States’ alone”: “international society is composed of various actors”, and this is reflected in Part Five of the Treaty on the Functioning of the European Union (para. 29). It also found, “the concept of ‘third country’ … cannot … be equated with that of ‘third State’. The concept of ‘third country’ has a broader scope which goes beyond sovereign States” (para. 36).

Reel v Holder [1981] 1 WLR 1226 (CA) is also instructive. In that case, the Court of Appeal of England and Wales had to decide (inter alia) whether Taiwan was a “country” under the rules of the International Amateur Athletic Federation (“Federation”), which was then an unincorporated association with rules governed by English law.

The Court of Appeal found that Taiwan was a “country” separate from the PRC under the rules of the Federation. It did so after finding that considerations of “statehood and sovereignty” have “no application whatever to the problem which we have to decide today under the rules of the [F]ederation” (per Lord Denning MR at 1228).

The General Court and the Court of Appeal were of course concerned with questions of EU law and English law, respectively. However, the courts’ findings have broader implications. Istrefi rightly argues that the findings of the General Court “have implications for general international law”.

THE GENERAL ASSEMBLY SHOULD REVISIT GA-2017-86-RES-01

For all of the reasons above, I am of the view that, properly understood, the members of INTERPOL are countries and membership of INTERPOL is not (and should not be) dependent on statehood. Members of INTERPOL should put this beyond doubt by exercising their right to request that membership of INTERPOL be added to the agenda for the General Assembly’s 90^th ordinary session and then rectifying the wrong turn taken in GA-2017-86-RES-01.