The possibility of setting up internation data-protection bodies based on the model of the Supervisory Board for the Control of Interpol Archives has given rise to discussion of the scope of such a body's prerogatives, its legal status, its independance and its efficacity.
Presented as an original international public law body1 when it was set up, the Supervisory Board for the Internal Control of Interpol’s Archives has been subjected to the various forms of prejudice against, and reproaches traditionally levied at, Interpol2, which is an international intergovernmental organization which is neither widely known nor, as yet, adequately analysed3.
However, this new institution has now been operating continuously for nearly a decade, which is quite long enough to evaluate its credibility and its efficacity. It has even become an international model which could well be followed by many international organizations located on French territory for the control of their archives.
Mr Louis Joinet, a magistrate and a former technical adviser in the French Prime Minister’s Executive Office, who acted as a consultant for the French representatives during negotiations on the Headquarters Agreement between Interpol and France, was also Rapporteur on the United Nations Commission on Human Rights. In his report on the guidelines for data protection, he cited the Supervisory Board as an example of a possible control body for the archives of international organizations.
Admittedly, adapting archive-control procedures to each individual international organization in the light of its type, field of action and operating conditions has not been settled (Europol, Schengen, OECD, United Nations, etc.). Nevertheless, it is quite true that the creation of an international data-protection body along the lines of Interpol’s Supervisory Board gives rise to considerable debate about the scope of such a body’s powers, its legal status, its independence and its affectivity.
This debate is a vivid reminder of all the questions raised when Interpol’s Supervisory Board was created: would it be an ad hoc committee or a standing committee? Should it be given specific legal responsibilities or should its role be limited to verifications of a general nature? What control standards should be applied?
To answer these questions, we must analyse the legal nature of the new institution in order to highlight the very specific nature of the Board which is unique in international public law, and we must also assess the advisability of setting up similar data-protection bodies at international level in the future.
Is the debate political or legal?
The question was raised as to whether the Board was an internal or external body in relation to the Organization itself. Some maintained that the Board apparently came somewhere between the two and that it was possibly a body for internal control rather than an internal control body4. Others concluded that the Board was internal in nature and claimed that that would inevitably affect the efficacity of its controls5.
In fact, the debate about whether the Board was an internal or external body in both the French and European parliaments was political rather than legal. By deciding in advance that any internal control would be ineffective and by claiming that only external control would be effective, some completely ignored the Board’s actual responsibilities and the tangible guarantees provided of its independence.
This political debate — which has no legal coherence — avoids placing the Board within the context of the Organization’s internal legal structure or even within that of the Headquarters country; in addition, it fails to analyse the legal instrument which set it up. As a result, the precise legal nature of the Board is minimized, whereas it is that which governs the legal system under which the Board operates. At all events, at its 1998 session in Cairo, the Interpol General Assembly approved the report submitted by the Supervisory Board. The Board itself asked that the word “internal” be deleted from its title in order to emphasize the fact that its composition was entirely independent since none of its members was in any way subordinate to the Secretary General. The General Assembly noted that the adjective “internal” qualified the control of the archives, not the Board, which was an independent body even though it was part of the Organization’s structure and applied the latter’s internal regulations.
Consequently, the first essential step when studying the Board’s legal nature is to analyse the instrument which set it up and its status within Interpol’s internal legal order and that of the Headquarters country. Is the Board a body similar to a specialized agency in the United Nations system, or is it just a body covered by the Organization’s own international legal personality?
Within the context of the law of international organizations, the main questions — which are essential if we are to determine the legal consequences of the creation of the Board — can be summarized as follows: is the Board one of Interpol’s subsidiary organs? In other words, is it a body set up by international treaty or by a unilateral act on the part of the Organization?
This study therefore sets out to analyse the Board’s constitutive instrument as it was decided on by the Organization itself in an attempt to combine the internal decision to create a “subsidiary body” with approval of the draft Headquarters Agreement with France.
According to Professor Reuter, the creation of subsidiary organs is governed by a simple, clear-cut principle: an international organization’s subsidiary organs are only set up by the proceedings of that organization itself, not by intergovernmental agreements6.
Analysis of the unique nature of a subsidiary organ therefore depends on the distinction between a convention (such as that which set up the Schengen System’s joint control body or that of Europol) and an act carried out by an international organization (resolution, internal regulations).
Is the Board an organ set up by international treaty?
According to Claude Valleix, “Interpol’s setting up of the Supervisory Board can be seen as the act that implements an agreement whose contents are obviously the product of the Organization’s wishes, but also of the wishes of the Headquarters State. Under these conditions, the Supervisory Board differs from Interpol’s other organs by the fact that it cannot be abolished without the consent of the French Government7.”
However, Mr Valleix’s theory postulates far more than the mere conclusion of a bilateral agreement and implies that the Board was originally set up on the basis of a joint agreement. Even if it has close links with Interpol, an organ set up on the basis of a bilateral international agreement cannot be considered to be one of the Organization’s internal organs without completely changing its nature8. Consequently, the distinction between the Board as one of Interpol’s internal organs and as a new international body set up on the basis of an agreement between two subjects of international law appears less clear-cut than at first glance9.
In fact, this analysis indirectly means leaving aside the Organization’s will, for how should that will be interpreted if the Organization sets up an organ which comes outside its internal legal order or which is the equal of its principal organ (and, as a result, the equivalent of a new international organization), whereas its Constitution — which was not amended following the creation of the Board — gives it only limited powers? And amending the Constitution would require the intervention of other Member States.
In addition, the Organization’s willingness to set up a Supervisory Board represents an international commitment on the part of Interpol, although that commitment cannot be considered to be an act of joint creation. The fact that the Board was set up at the same time as the conclusion of the Headquarters Agreement with France does not in itself justify the conclusion that there was a joint act of creation.
Consequently, it is important to look at the context within which creation of the Board was combined with approval of the Headquarters Agreement in a legal, rather than a political, way. From the political point of view, it is true that, as a result of the negotiations, France did acquire a specific advantage compared with other member countries, i.e. the right to appoint a member of the Board. Nevertheless, the law governing headquarters agreements can provide legal explanations for that advantage which does not in itself mean that the Organization is in any way subordinate to France — indeed, France gave the express undertaking that it would respect the inviolability of Interpol’s archives.
Combining creation of the Board with approval of the
Headquarters Agreement
Firstly, it should be pointed out that at its 51st session in Torremolinos, Spain, from 5th to 12th October 1982, the Interpol General Assembly adopted a single resolution instituting the Rules on International Police Co-operation and the Internal Control of Interpol’s Archives, and approving the draft Headquarters Agreement and Exchange of Letters between the Government of the French Republic and Interpol.
This resolution10 is actually a combination of two draft resolutions which could have been adopted separately. Since there are no specific provisions in Interpol’s Constitution governing approval of a headquarters agreement, the draft resolution on the matter could have been adopted by a simple majority of those present and casting an affirmative or negative vote. However, Article 27 of the draft Rules on International Police Co-operation and the Internal Control of Interpol’s Archives stipulated that the Rules were to be adopted as an appendix to the Organization’s General Regulations. Under the terms of Article 44 of Interpol’s Constitution and Article 20 of the General Regulations, any appendix to the latter has to be adopted by a two-thirds majority of those present and casting an affirmative or negative vote.
In view of this, the Interpol Executive Committee discussed the procedure to be followed by the General Assembly when adopting the draft of the new Headquarters Agreement between the Government of the French Republic and Interpol. It decided that, even though the Constitution did not contain any specific provisions on the matter, adoption of the text should be subject to a vote by a two-thirds majority of those present and casting an affirmative or negative vote. The thinking behind this decision was as follows: the Headquarters Agreement was of vital importance for the Organization and should therefore be approved by a large number of Members. The Organization could only guarantee its commitments under international law arising from the Headquarters Agreement, and more particularly the Exchange of Letters appended to it, if it also adopted a set of rules which would be an appendix to the General Regulations11. Since such rules would have to be adopted by a two-thirds majority of those present and casting an affirmative or negative vote, it would be quite inappropriate to adopt the Agreement itself by a simple majority of those present and casting an affirmative or negative vote while one of its guarantees could not be implemented unless adopted by a two-thirds majority. The General Assembly approved the Executive Committee’s proposal and the Headquarters Agreement, with its Exchange of Letters, and the appendix to the General Regulations, were put to the vote in a single resolution which covered adoption of both texts.
This was done deliberately because the content of the main provisions of the draft Exchange of Letters was incorporated in the second part of Interpol’s internal rules, entitled “Internal Control of Interpol’s Archives”, with the addition of provisions for setting up the Supervisory Board. The General Assembly was informed that the Board would be an organ of the Organization which would be the international equivalent of data-protection bodies set up in various countries12.
This reference to several data-protection bodies set up in member countries was an indirect response to certain ideas put forward about transferring the Organization from French territory and gave expression to the Organization’s concern at the way in which national data-protection laws were developing13.
Combining the two texts in a single resolution was therefore not just a simple matter of the most appropriate procedure to follow, but an expression of the Organization’s political will to give advance proof that it intended to honour its commitments in the form of a unilateral act adopted by its supreme governing body, which would allow France to renounce application of the Law of 1978 and to grant Interpol the immunities given to other international organizations having their headquarters in France. In this way, the Organization decided to set up the Supervisory Board as part of its internal legal order even before France had approved the Headquarters Agreement or accepted the prerogative given it in Interpol’s internal rules, i.e. the right to appoint a member of the Board.
However, this prerogative cannot change the nature of the Board’s constitutive instrument. Resolutions adopted by Interpol’s General Assembly are the Organization’s acts as such, but their execution may be subordinate to measures which a Member State (in this case, the Headquarters country) may need to take as part of its own domestic laws.
A combination of this kind is a recognized international practice. In many cases, the legal act of an organization setting up a subsidiary organ is combined with the provisions of an international agreement. In this way, the organization creates an internal organ, but it is an agreement between States which introduces new obligations and gives the subsidiary organ a whole series of new responsibilities and functions14.
This technique of combining a subsidiary organ with an intergovernmental agreement makes it possible to solve certain practical problems in international life15. The validity of this analysis is illustrated by the Organization’s will as expressed both in the constitutive instrument setting up the Supervisory Board and in its combination with approval of the Headquarters Agreement.
A subsidiary organ set up by a unilateral act on the part of the Organization
Resolution AGN/51/RES/1, which was adopted by the Interpol General Assembly at its 51st session in Torremolinos, Spain, from 5th to 12th October 1982, was entitled “Approval of a draft Headquarters Agreement and Exchange of Letters between the Government of the French Republic and the ICPO-Interpol; Adoption of Rules on International Police Co-operation and on the Internal Control of Interpol’s Archives”. It is particularly interesting from the legal point of view, since it was the first time that the General Assembly had decided to set up an independent legal entity by a simple resolution, in other words a unilateral act of an international organization.
The Resolution contains the following provisions:
“…HAVING STUDIED Report No. 13 submitted by the Secretary General, entitled “Rules on International Police Co-operation and the Internal Control of Interpol’s Archives”,
HAVING TAKEN NOTE of the opinion expressed by the ad hoc committee consulted in accordance with the provisions of Article 60 of the General Regulations,
The ICPO-Interpol General Assembly, meeting in Torremolinos from 5th to 12th October 1982 at its 51st session:
APPROVES the draft Headquarters Agreement as given in Appendix 1 of Report No. 6 and the draft Exchange of Letters as given in Appendix 2 of that Report; …
ADOPTS the text of the Rules as it appears in Appendix 1 to Report No. 13, together with the modifications appearing at Appendix 2 to the same Report.”
The Resolution approved the Headquarters Agreement and the appended Exchange of Letters, and that approval resulted in an obligation binding on the Organization which is defined as follows in Article 1 of the Exchange of Letters: “For the internal control of its archives, the Organization shall set up a Supervisory Board…”.
The Resolution was also a constitutive instrument setting up the Supervisory Board in as much as it approved the Rules on International Police Co-operation and the Internal Control of Interpol’s Archives, Article 15 of which stipulates: “A Supervisory Board is hereby set up for the internal control of Interpol’s archives…”.
The Rules (hereinafter referred to as “the Rules on International Police Co-operation”), as adopted by the General Assembly at its session in Torremolinos, reproduce in Articles 15, 16, 17, 21(4), 22, 23 and 25(1) the provisions contained in Articles 1, 2, 3, 4, 5, 6 and 7 of the Exchange of Letters — i.e. all the provisions involved. In other words, the contents of the essential provisions of the Exchange of Letters have been incorporated in Part Two of Interpol’s internal Rules, entitled “Internal Control of Interpol’s Archives”, with the addition of provisions making it possible to set up the Board.
The organic criterion is therefore clearly established: the Board is an organ of Interpol, it derives from the institution itself. Its creation devolves from a debate carried on by the Organization and is therefore an example of the Organization’s will. In this way, the organ which is set up has a legal basis other than a treaty. The constitutive instrument setting up the Supervisory Board is therefore a unilateral act of the Organization.
Saying that Interpol’s General Assembly resolution is a unilateral act of the Organization means that the States which took part in setting up the Board did so not as sovereign States acting independently, but in their capacity as Interpol Member States. The resolution is not the result of a bringing together of the independent individual wills of States, but the manifestation of the Organization’s own will.
Admittedly, the Interpol General Assembly has no legislative powers, or at least not so far as States are concerned, whether or not they are Members of the Organization. Its resolutions do not constitute treaties between Member States. So although a General Assembly resolution merely has moral force vis-à-vis Member States, which are legal entities distinct from the Organization, the situation is quite different as far as the effects a resolution has when it is addressed not to Member States but to the Organization’s governing bodies16.
When a resolution’s subject and scope of application do not concern States and their sovereign rights but the Organization’s internal structure, that resolution is obviously legally binding, provided that it does not exceed the powers expressly or implicitly granted to the General Assembly by Interpol’s Constitution. In that context, the Torremolinos resolution is not a simple recommendation but a decision which has a binding effect on Interpol’s internal legal order, in other words a resolution of that kind is binding on Interpol’s organs (Executive Committee, General Secretariat).
Nevertheless, there are those who contest the resolution’s validity in that it contradicts Article 5 of the Constitution, which lists Interpol’s organs, and Article 2 of the Constitution, which would not appear to authorize the Organization to set up a data-protection body as one of its organs.
This argument has no legal foundation for the following reasons.
Validity of the Torremolinos resolution
Those who put forward this argument are referring implicitly to the proposal to amend Interpol’s Constitution which was put forward in 1994 (and which was abandoned by the General Assembly) when interpreting the current Constitution. This method of legal interpretation is questionable since there are often good reasons for amending a text, not because it is unsuitable for dealing with current or previous situations, but more particularly for political and administrative reasons.
Powers of the General Assembly
Since the proposed amendment suggested replacing the current Article 5 of the Constitution by new Articles 7 and 10, in order to include in the General Assembly’s powers that of setting up subsidiary organs which would be considered as organs of the Organization (Article 7 of the draft amendment to replace the current Article 5), it is quite obvious that it was aimed at confirming the Assembly’s powers to create subsidiary organs rather than negating its ability to do so. The proposed amendment was motivated mainly by the desire of various experts at Interpol to delete the term “NCBs” from the list of the organs of the Organization which appears in the current Article 5 of the Constitution and to confirm a principle motivated by the following remarks made by one of those experts (Mr Schlanitz, the Organization’s former Legal Director): “This Article corresponds to provisions which normally list the organs of the Organization. The creation of new organs by an organization’s general assembly is not an unusual phenomenon and may be based on the theory of ‘inherent powers’”.
The idea was therefore to increase the scope of the text since nearly all constitutive instruments of international organizations contain provisions stipulating that those organizations may create new organs in the future. Even though the Constitution says nothing on the matter, it is agreed that this is one of the powers inherent in the Organization’s supreme authority, traditionally known as the “ inherent powers” of the General Assembly. What is the significance of this theory?
The theory of inherent powers merely provides guidelines for interpreting the constitutive instruments of international organizations. In the light of decisions taken by the International Court of Justice, international legal precedent has given a very free interpretation of the powers of the United Nations’ main bodies to set up subsidiary organs. Referring to the concept of “functional powers” and the teleological nature of the Organization’s powers, the International Court of Justice found that there is a legal basis for setting up a subsidiary organ not in any textual provision of the United Nations’ Charter but, over and above the texts, in the concepts which are at the very heart of the institution: the overriding nature of the United Nations’ objectives and the wide-ranging scope of the functions carried out by its principal organs.
In its legal opinion of 1949, the Court used the concept of functional powers to legitimize the appointment of a mediator for Palestine, a subsidiary organ of the Security Council (11th April 1949, ICJ proceedings, page 177). It stated that, under international law, the Organization must be considered as having the relevant powers which, although not expressly laid down in the Charter, are of necessity conferred on the Organization as being essential for the exercise of its functions.
In the light of the practice followed and information given in two major opinions handed down by the International Court of Justice — one, in 1949, on reparation of prejudice suffered while in the service of the United Nations and the other, in 1954, on the effects of the judgments handed down by United Nations’ Administrative Tribunal17 — the theory of the Organization’s functional powers provides the best explanation for both the scope and limits of the functions delegated to the subsidiary organs of international organizations when they are set up as a result of the will of those organizations’ general assemblies.
The standards created by these international legal precedents also apply to Interpol if it is considered to be an international intergovernmental organization.
This is also true of the powers of Interpol’s General Assembly — the Organization’s supreme body — which has the capacity to set up the Supervisory Board even though there is no specific reference to the matter in Article 5 and Article 8 of the present Constitution.
However, that being said, is the creation of the Supervisory Board compatible with the Organization’s objectives?
Some would argue that it is not. They consider that Article 2 of the Constitution cannot be taken to authorize the creation of a data-protection body within the Organization. But neither is this theory legally valid.
Compatibility of the Supervisory Board’s functions with
Article 2 of the Constitution
Those who believe that the Supervisory Board’s functions are not compatible with Article 2 of the Constitution argue that the Article — particularly Article 2(2) which stipulates that one of the Organization’s aims is to “establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes” — has no relevance as far as creation of the Supervisory Board is concerned: the Board’s aim is to “protect police information processed and communicated within the ICPO-Interpol international police co-operation system against any misuse, especially in order to avoid any threat to individual rights” (Article 1(2) of the Rules on International Police Co-operation and on the Internal Control of Interpol’s Archives, which sets out the purpose of the Rules).
This argument contradicts the very definition of the principle of the specific nature of international organizations and creates a false division between the aim of control and the functions or objectives of the Organization and its organs. Indeed, by its own contradiction, it strengthens the theory of the General Assembly’s “inherent powers” on the basis of a specific text, i.e. Article 2(2) of the Constitution, which expressly authorizes the Organization to set up new institutions, provided that these are in strict compliance with its own responsibilities.
Against this argument, it must be said, first and foremost, that the concept of “inherent powers” or that of “functional powers” does not legitimize the creation of a subsidiary organ by a principal organ (General Assembly, etc.) or the attribution to that subsidiary organ of unlimited functions. Subsidiary organs cannot carry out any task which is foreign to an organization’s functions or not essential for those functions. It is the Constitution which defines the limits of those essential functions.
The first question to arise concerns a more accurate evaluation of Interpol’s powers, since it is these which constitute the essential legal basis for the Organization’s activities. The only relevant text is Article 2 of the Constitution, which stipulates:
“(The Organization’s) aims are:
To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the Universal Declaration of Human Rights;
To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.”
Taking this text literally, particularly paragraph (2), there would not appear to be any limits to the scope of police co-operation (with the exception of those stipulated in Article 3 of the Constitution). Such limits would cover data protection, and that particular problem can only be resolved in conformity with the spirit of the Universal Declaration of Human Rights.
In other words, if the aim of the Rules on International Police Co-operation is to avoid any encroachment on human rights in the context of processing and exchanging police information, and if this is combined with the original intention when setting up the Supervisory Board, the only basis for that aim is Article 2 of the Constitution which stipulates that police co-operation through Interpol may only be carried on in respect of human rights.
Furthermore, the functions assigned to the Supervisory Board when it was created by a demonstration of the Organization’s will, are rooted in the main functions of the Organization itself, as set out in Article 2 of its Constitution. Preventing any encroachment of human rights by setting up a Supervisory Board for the Control of Interpol’s Archives is merely a subsidiary function of necessity conferred on the Organization so that it may carry out its co-operation activities effectively — such co-operation being essential to prevent and punish ordinary law crimes — to the exclusion of any form of co-operation which involves political matters or which are in violation of human rights.
This interpretation is backed up by Article 8(b) and (d) of the Constitution, which fixes the scope of the General Assembly’s powers as follows:
“(b) To determine principles and lay down the general measures suitable for attaining the objectives of the Organization as given in Article 2 of the Constitution;……….
(d) To determine any other regulations deemed necessary.”
These explicit powers given to the Interpol General Assembly, in addition to its inherent powers to create subsidiary organs not listed in Article 5 of the Constitution, were exercised by the Assembly when adopting the 1982 resolution which set up the Supervisory Board for the Control of Interpol’s Archives through the adoption of the Rules on International Police Co-operation (Article 15 of the Rules, quoted above) in the strict respect of Article 2 of the Constitution.
This interpretation of Article 2 of the Constitution is also that put forward by Professor Reuter, an internationally recognized expert in international law. He was consulted by the Organization in 1980, even before the Headquarters Agreement with France was concluded, and in his legal opinion on the matter he described Interpol’s legal nature as follows: “The terms of Article 2 of the Constitution are very general since within the Organization’s specific field of activities, bearing in mind the restrictions mentioned in Article 3, they emphasize the Organization’s active role: the ICPO shall ‘promote assistance’, ‘establish… all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes’. Naturally, the General Assembly has to adopt the necessary measures and decide, where appropriate, to attribute financial resources for carrying out projects, but Article 8, which describes the Assembly’s functions, is also worded in general terms and we might point out in passing that the Assembly’s decisions — with the exception of those involving any revision of the Constitution and General Regulations — are taken by a simple majority vote. In the undersigned adviser’s opinion, this means there is nothing in its constitutive instruments to prevent the ICPO from setting up, for instance, technical offices or agencies outside the country in which the ICPO has its headquarters.”
It is clear that, as analysed in the above opinion, the Organization has the necessary powers to create an internal and independent body to control its archives, through the adoption of a resolution by its General Assembly.
Consequences of the Supervisory Board’s constitutive instrument
It should be noted that the creation of the Supervisory Board does not automatically lead to the creation of new obligations for Member States since they did not contract to those obligations when acceding to the Constitution, either explicitly or implicitly.
Respect of the Constitution
The Supervisory Board’s constitutive instrument differed from other instruments setting up specialized institutions (external organs) in that it was necessarily constrained by the fact that it had to comply with the provisions of Interpol’s Constitution. This is also the case for the various legal acts that the Board, in its turn, is authorized to carry out by virtue of the resolution. The Board cannot therefore undertake any task which is foreign to, or not essential for, the Organization’s functions. It is the Constitution itself which sets the limits of these essential functions and it is the Rules on International Police Co-operation which lay down the control procedures to be used by the Board and its responsibilities, its terms of reference and its regulatory powers.
Absence of legal personality
Although there are no specific criteria governing the definition of international legal personality, it is nevertheless possible to assert that the Board, which was created by a demonstration of the Organization’s will and not by an intergovernmental agreement, cannot claim to have full international legal personality. The Board is therefore an integral part of the Organization, whose budget must meet the cost of the effective performance of the Board’s functions.
As far as French domestic law is concerned, the Board does not have legal personality. The Organization’s international status in French domestic law covers the subsidiary organs, entities for which the Organization is responsible.
Dissolution by an act of the Organization’s will
There is a third consequence of the unilateral nature of the creation of the Supervisory Board: the Board may be dissolved by a unilateral act taken by the organ competent to do so, i.e. the General Assembly. In theory, dissolution should be carried out by the same type of act which created the Board, i.e. a resolution.
The conditions for doing away with the Supervisory Board are similar to those governing its creation: the decision must result from a demonstration of the will of the principal (creating) organ. If the Organization decided to do away with the Board, it would be violating an international commitment, thus giving rise to an international dispute which would have to be resolved by arbitration. However, that situation would not restrain the Organization’s independence: it would still be free to move from French territory to some other country. In that connection, Interpol’s Headquarters Agreement with France would become null and void, and it would be absurd to contend that the Exchange of Letters (which is an international agreement independent of the Headquarters Agreement) would be applicable as a constitutive instrument of the Supervisory Board.
That said, if the Organization left France it could legally keep the Supervisory Board as one of its organs and continue to assign to it its functions, either in its original composition or in some form of composition where the French representative would be replaced by the representative of some other country chosen by the General Assembly itself. In any case, the Organization has always endeavoured to increase the Board’s functions, not restrict them.
The Board’s functions as a subsidiary organ of the Organization
The Board is responsible for investigating and evaluating the application of internal standards to individual cases. Its standards are those of the Organization’s internal law, plus the general principles of law. The Board can interpret the texts required for it to carry out its control tasks.
The texts stipulate that should there be a difference of interpretation, it is the Executive Committee which is responsible for arbitration between the Supervisory Board and the General Secretariat. However, the General Assembly remains the supreme organ responsible for taking all decisions on matters of interpretation which are applicable to the Board.
The Board’s mission is an ongoing one. This has been confirmed by other resolutions dealing with archives held outside the Headquarters: headquarters agreements have been concluded with the governments of Côte d’Ivoire, Argentina and Thailand. These agreements do not include any special provisions governing the control of archives held by the Sub-Regional Bureaus located in these host countries.
Although the Organization was free to exempt the Sub-Regional Bureaus from internal control as laid down in the Exchange of Letters with the French Government, in view of the territoriality of the Headquarters Agreement, (18) it chose to submit that control to the current Supervisory Board, without setting up other regional subsidiary organs in its place.
A resolution entitled “Data protection: Police information held by permanent departments located outside the Headquarters”, was therefore adopted by the General Assembly at its session in Punta del Este in 1991. It contains the following provisions (in application of Article 25 of the Constitution):
“…Considering that police information recorded at permanent departments located outside the Headquarters should be subject to control in order to ensure that it is recorded, corrected, used and deleted in conformity with the Organization’s internal regulations,
Convinced that it would be valuable, both for international police co-operation and for the practical execution of such control, if all police information appearing in archives at permanent departments located outside the Headquarters was recorded at the Organization’s Headquarters,
…
The ICPO-Interpol General Assembly, meeting in Punta del Este from 4th to 8th November 1991 at its 60th session:
ADOPTS the following instructions:
(1) Police information recorded at permanent departments located outside the Organization’s Headquarters shall also be recorded at the Headquarters;
(2) Correction or deletion of information recorded at the Organization’s Headquarters as a result of (1) above, shall result in the correction or deletion of that information at the permanent departments located outside the Headquarters; the present rule shall apply, mutatis mutandis, to the Organization’s Headquarters in the case of information which has been corrected or deleted at the permanent departments outside the Headquarters;
(3) When computerization or telecommunications projects are implemented at permanent departments outside the Headquarters, care must be taken to ensure that the functions available on the systems selected facilitate data protection and control;
(4) Since control of the police information recorded at the Organization’s Headquarters is the responsibility of the Supervisory Board for the Internal Control of Interpol’s Archives, the General Secretariat is requested to consult the Board about the practical measures required to ensure that the rules given in (1) and (2) above are respected.”
Relations between the Supervisory Board and the Organization’s
other organs
The unilateral act which created the Supervisory Board can be directly assigned to the General Assembly and in a more general manner to the Organization. The General Assembly is merely its authorized organ.
A principal organ which creates a subsidiary organ can assign all the necessary functions related to control of that subsidiary organ and modification of its terms of reference to another principal organ.
This point of view is mainly based on legal precedents of the International Court of Justice. In its consultative opinion on the allowances paid by the United Nations Administrative Tribunal, the Court expressly refuted the theory that when it had created the Tribunal, the United Nations General Assembly had delegated to it the exercise of its own functions. After having examined the Tribunal’s situation in the overall framework of the Charter and that of the United Nations itself, the Court had concluded that the Tribunal was a “legal” organ set up by the United Nations to deal with disputes between the Secretary General and officials of the Organization19.
It would therefore be wrong to describe the Supervisory Board as a subsidiary organ of the Organization’s General Assembly or of its Executive Committee — it is a subsidiary organ of the Organization as a whole. Although the General Assembly set up the Board, it did so not to carry out its own objectives but to achieve Interpol’s aims as an international public service.
The General Assembly did not delegate any special powers to the Executive Committee with regard to the Board, with the exception of those relating to the renewal of the Board’s terms of reference and modifications and results of the Board’s checks. To that end, the Board submits an annual report to the Executive Committee and can therefore be asked to defend that report before the Committee.
As far as its relations with the General Secretariat are concerned, the Board can call on the Secretariat’s help. The scope of that assistance is defined quite broadly: assignment of staff, access to the archives, power to interview officials, consultation of the Executive Committee, etc.
As a result, the General Assembly has delegated to its principal organs (the Executive Committee and the Secretary General) certain powers and obligations within a tripartite relationship between the Executive Committee, the Secretary General and the Supervisory Board itself, in order to ensure that the control of Interpol’s archives is both efficacious and independent.
Souheil EL ZEIN
Legal Director of INTERPOL
Footnotes
(1) Alice Pezard, “L’O.I.P.C.-Interpol et son accord de siège”, AFDI, 1983, p. 565. The author points out that a unique international precedent was set with regard to the control of the archives and information held by an international organization. See the speech made by Mr Mitterand, President of the French Republic, at the inauguration of Interpol’s Headquarters in Lyon, during which he said that the Supervisory Board “constituted — and continues to constitute — an important innovation in international law”. International Criminal Police Review, No. 421, 1989, pp. 4 et seq.
(2) Laurent Greilsamer, “Interpol: le siège du soupçon”, Pub. Alain Moreau, 1986, p. 260.
(3) David Ruzie, “L’Organisation internationale de police criminelle”, AFDI, 1956, pp. 673-679; Michel Masse, “Droit penal international: l’O.I.P.C.-Interpol”, Revue de science criminelle et de droit pénal comparé, 1984, p. 376.
(4) S. Thirion, Report on internship, Paris University, 1989, page 48.
(5) During the debate on draft law No. 354 proposing the approval of the Headquarters Agreement between Interpol and the French Government, Mr Guy Ducoloné, speaking on behalf of the Communist Group in the French National Assembly, and Mr Marc Lauriol, speaking on behalf of the RPR Group, expressed reservations about the procedure for setting up the Supervisory Board (see session of the French National Assembly, 28th November 1983, Journal Officiel, 1984).
See also Laurent Greilsamer, op. cit., page 260.
A group in the European Parliament submitted two draft resolutions to the Parliamentary Assembly of the Council of Europe with a view to subjecting Interpol (designated as a private body) to controls drawn up in close liaison with international tribunals and the United Nations or to the control of the International Court in The Hague. Both drafts (Document No. 6081/1989 and Document No. 6179/1990), which called into question the very existence of the Supervisory Board and contained contradictory legal terms, were rejected by the Bureau of the Parliamentary Assembly.
(6) Paul Reuter, “Des organes subsidiaires des organisations internationales” in Hommage d’une génération de juristes au Président Basdevant, Paris, 1958, page 423.
(7) Claude Valleix, RGDIP, No. 3, 1984, page 650.
(8) Claude Valleix, RGDIP, No. 3, 1984, page 651.
(9) This was the case from 1946 with the Permanent Central Narcotics Board and the Drug Supervisory Body. These two bodies were not subsidiary organs in that their terms of reference were fixed by treaty and could not be modified by a principal organ of the United Nations. When the 196l Single Convention on Narcotic Drugs came into force on 13th December 1964 both bodies were replaced by a single control body for drugs which retained the characteristics of its predecessors; it was created by intergovernmental agreement and does not have the essential characteristic of subsidiary organs, i.e. it is not the result of a demonstration of will by the United Nations, even though its functioning would appear to be closely linked to that of the United Nations (see Mme Dutheil de la Rochère, “La charte des Nations Unies: commentaires article par article”, Collection Pellet, Economica, page 215).
(10) See Reports No. 6 and No. 13 submitted to the General Assembly at its session in Torremolinos in October 1982, to which the draft resolutions were appended.
(11) Resolution AGN/51/RES/1 adopted by the General Assembly in Torremolinos in October 1982; see also minutes of the 3rd plenary session of the Assembly’s 51st session (1982).
(12) Report No. 13, entitled “Rules on International Police Co-operation and on the Internal Control of Interpol’s Archives”, submitted to the General Assembly at its session in Torremolinos.
(13) Report No. 7 submitted to the General Assembly at its 50th session in Nice in 1981. During the session, the working party was informed of the problems that might result from the application of national data-protection laws. The implementation of an international computerized system is likely to pose problems with regard to the application of national laws on data protection and individual freedom. The working party also laid down certain principles which would make it possible to bring the Rules into line with the laws of countries with such legislation. It was at the 1981 General Assembly session that the first draft of the internal rules on the control of Interpol’s archives was submitted and discussed, before being modified in 1982.
(14) Paul Reuter, op. cit., page 423.
(15) This was also the case with the Committee for the elimination of racial discrimination, which was set up by the same resolution which opened for signature and ratification the International Convention on the elimination of all forms of racial discrimination. This example seems to be the nearest to that of the Supervisory Board, whose creation coincided with the approval not of a multilateral convention but by a bilateral treaty, i.e. the draft Headquarters Agreement with France.
(16) Rousseau, DIP Treaty, Vol. OI.P.
(17) Misconi, Thesis, Paris, 1963.
(18) As a general rule, the application of a special provision contained in an exchange of letters relating to archives held by an organization’s general secretariat outside the State concerned is not automatic and should be based on an express provision, which is not the case here.
(19) Paul Reuter, op. cit., page 423.
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