Contemporary international relations have resulted not only in the establishment of intergovernmental organizations (‘IGOs’), but also in the emergence of certain IGO-like entities which are entering into ‘diplomatic-like’ relations with states, characterised by privileges and immunities similar to those provided under classic diplomatic law. This paper analyses such diplomatic-like relations between states and a number of these IGO-like entities primarily in relation to so-called ‘trans-governmental organizations’ (‘TGOs)’. In addition, organizations composed of formally non-state entities, but with an undoubtedly public purpose, such as the International Committee of the Red Cross (‘ICRC’) or the International Federation of Red Cross and Red Crescent Societies (‘IFRC’), as well as other so-called ‘advanced’ non-governmental organizations (‘NGOs’), will also be discussed due to their participation in legally regulated international, diplomatic-like relations with states and IGOs.
Even today, when talking about diplomatic law what is primarily borne in mind are the legally regulated diplomatic relations among states, ie the legal norms codified in the Vienna Convention on Diplomatic Relations of 1961 (hereinafter ‘ VCDR ’), 1 or in the Convention on Special Missions of 1969. 2 This understanding originates from the state-centric concept of international legal personality as developed in the traditional, post-Westphalian international legal order that considered states to be the only subjects of international law. 3 However, the appearance of the first modern intergovernmental organizations (‘IGOs’) as early as in the second half of the 19th century brought about changes. 4 Thus, by the first half of the 20th century the development of the concept of international legal personality concerning IGOs was greatly accelerated due to both the functionalist approach towards international relations brought about by technological development that facilitated international co-operation and its institutionalisation, and the growing number of such organizations. Consequently, the right of legation (ius legationis), both in its active and passive form, ie as the right to send and to receive diplomatic envoys, as well as diplomatic relations in general, ceased to be the monopoly of states. Contemporary diplomatic law was faced with the necessity of also regulating diplomatic relations between states and IGOs. Thus, at least three important conventions on that matter were adopted after World War II: the Convention on the Privileges and Immunities of the United Nations of 1946, 5 the Convention on the Privileges and Immunities of the Specialized Agencies of 1947, 6 and the Vienna Convention on the Representation of States in their Relation with International Organizations of a Universal Character of 1975. 7
However, such international co-operation resulted not only in the establishment of IGOs, but also in the emergence of IGO-like entities entering into some kind of diplomatic-like relations with states, characterised by privileges and immunities very similar to those provided for by the Conventions. This means that diplomatic relations (and consequently diplomatic law) have evolved beyond inter-state relations to encompass IGOs and IGO-like entities (which are transnational, sometimes even ‘private institutions’) that, due to the functional necessity of international relations, have become participants in the international community.
The analogous regulation of such diplomatic-like relations between states and IGO-like entities is still based on agreements of questionable legal nature as the international legal personality of these entities is uncertain. However, it should not be forgotten that law, its sources, and the very concept of legal personality have always been dynamic categories subject to social development.
2 The Notion of ‘IGO-like Entities’
According to G Fitzmaurice, “the term ‘international organization’ means a collectivity of states established by treaty, with a constitution and common organs, having a personality distinct from that of its member-states, and being a subject of international law with treaty-making capacity”. 8
However, the above-mentioned international co-operation and its institutionalisation have not always resulted in the creation of intergovernmental organizations formally including states, other IGOs, or other sovereign subjects of international law in their membership, 9 as determined by Fitzmaurice’s definition given above. Sometimes, the purpose of such co-operation led directly to the creation of organizations that lack some or more of the elements proper to IGOs. For the purposes of this paper these organizations will be referred to as ‘IGO-like entities’, not as a homogenous category but rather as a residual group of organizations which, despite their active participation in international relations, still await their place in international law doctrine, and particularly among the generally accepted subjects of international law. Their membership is sometimes composed of the central states’ organs which have legal personality in the public law of their respective states, but not in international law (eg ‘official police bodies’ in the International Criminal Police Organization (‘INTERPOL’), or the parliaments in the Inter-Parliamentary Union (‘IPU’)). Because of this disparity in terms of membership, and consequently in the legal nature of their constitutive acts in comparison with ‘classic’ IGOs, these organizations are sometimes referred to as ‘trans-governmental organizations’ (‘TGOs’). 10
The functional necessity of co-operation across states’ borders has sometimes resulted in institutionalised co-operation among local and regional authorities or other sub-state entities having legal personality in the public law of their states, but not in international law. These heterogeneous organizations are sometimes referred to as ‘interregional organizations’ (‘IROs’). Despite having participated in legally-regulated relations in the international community for decades, 11 these IGO-like entities are still far from being accepted as subjects of international law, having legal personality only in the legal orders of their respective states.
In addition, in contemporary international relations it is hard to ignore the role of international non-governmental organizations (‘INGOs’) with memberships of individuals or groups from various states, which are not formally within the governmental sector. Although they differ significantly from Fitzmaurice’s definition of IGOs, some of these IGO-like entities actively participate in international relations with states and IGOs. What is more, some of them, sometimes denoted as ‘advanced’ INGOs, have already gained diplomatic-like privileges and immunities based on bilateral agreements with numerous states (eg the International Committee of the Red Cross (‘ICRC’), the International Federation of Red Cross and Red Crescent Societies (‘IFRC’), the International Olympic Committee (‘IOC’)). 12 All these, and many other INGOs (eg Amnesty International, the World Wide Fund for Nature (‘WWF’), and the Antarctic and Southern Ocean Coalition (‘ASOC’)) enjoy observer status with the UN General Assembly, or consultative status with the UN ECOSOC or with several UN specialised agencies (eg UNESCO, FAO, WHO), and even with some regional organizations (eg the Council of Europe).
Of course, the types of organizations here referred to as ‘IGO-like entities’ by no means create an exhaustive list. The ‘hybrid’ or ‘quasi non-governmental organizations’ known as QUANGOs could also be included. 13 As the name suggests, these organizations are situated somewhere between IGOs and INGOs gathering in their membership both private, non-governmental entities (mostly single-country NGOs and sometimes even individuals from different countries), and the subjects of public international law such as states or IGOs. And according to Archer, ‘transnational organizations’ (‘TNOs’) and ‘business INGOs’ (‘BINGOs’) could also be added to the list. 14
However, in this paper the focus will be on two types of such IGO-like entities: TGOs and INGOs, that have obtained in contemporary international relations some diplomatic-like privileges and immunities analogous to those usually provided under classic diplomatic law for states, IGOs, and other subjects of international law (eg the Holy See, the Sovereign Order of Malta), but mostly based on their bilateral agreements with a particular receiving state.
2.1 Diplomatic privileges and immunities for trans-governmental organizations
Unlike IGOs, whose membership is formally composed of states or other generally accepted sovereign subjects of public international law, and INGOs that gather subjects of private law in domestic states’ legal orders, the membership of TGOs is composed of the various states’ central organs as public law subjects in those states’ legal orders. However, as has been already mentioned, these subjects, not being subjects of international law, participate in such membership in their own capacity, and not as representatives of their respective states. 15
This paper will consider two such TGOs: the Inter-Parliamentary Union and the International Criminal Police Organization. For decades, these have both been understood by international law doctrine and practise as INGOs, in spite of the public law character of their members in their domestic states’ legal orders. It is important to take into account the distinctive features of these IGO-like entities and to analyse them within a specific category of participants in diplomatic-like relations in the contemporary international community.
2.1.1 The Inter-Parliamentary Union
The Inter-Parliamentary Union was established in 1889 as an organization of individual parliamentarians of mostly European states. Since then, it has developed into a global organization of 173 Member Parliaments. 16 Its basic act—the Statutes of the Inter-Parliamentary Union—defines it in article 1 as follows: “The Inter-Parliamentary Union is the international organization of the Parliaments of sovereign states”. 17 Thus, according to article 3 of the Statutes, the parliaments of sovereign states, and not the states themselves, may become Members of the IPU. 18
In recent decades, the IPU has concluded agreements with numerous states, eg the IPU Headquarters Agreement with Switzerland, 19 and also similar agreements with other states providing it with privileges and immunities similar to those of IGOs. According to the above-mentioned IPU Headquarters Agreement on the status of the IPU in Switzerland, the Swiss Federal Council recognised not only the legal personality and legal capacity of the IPU (art 1), but also the inviolability of its premises and archives (art 2), the exemption from taxation (art 3), as well as immunity from legal process for all staff members of the Bureau of the IPU, irrespective of their nationality, for all acts performed in the discharge of their duties (art 7). Further, article 5 of the IPU Headquarters Agreement, regulating the IPU customs status, expressly provides that the customs clearance of articles intended for the IPU shall be governed by the same regulations which are applicable to IGOs.
Similarly, in 1981 the IPU concluded an agreement with the United States concerning the reimbursement of income tax. It is worth noting that, like the treaties between states or IGOs, this agreement was published in the United Nations Treaty Series. 20 Moreover, the United States, by the Executive Order 13097 of President Clinton in 1998, recognised the Inter-Parliamentary Union as a public international organization entitled to enjoy the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act. 21 Many of these privileges and immunities have been present in diplomatic law for centuries, being codified today in the VCDR , eg in articles 22, 24, and 36. Also, similar provisions can be found related to the privileges and immunities of many IGOs, including the most important ones. Thus, for example, the above-mentioned Convention on the Privileges and Immunities of the United Nations, and the Convention on the Privileges and Immunities of the Specialized Agencies provide juridical personality for these organizations, the inviolability of their premises and archives, exemption from taxes and custom duties, prohibition and restrictions on imports and exports in respect of articles for their official use, as well as the immunity of their officials in respect of words spoken or written and all acts performed by them in their official capacity. 22 Similarly, some of the privileges and immunities contained in the IPU Headquarters Agreement with Switzerland can be compared, for instance, to those of the UN Headquarters Agreement with the United States, for example in regards to the inviolability of the UN headquarters district. 23
All this has led some authors to the conclusion that the IPU has become an IGO. 24 However, because of the differences between the IPU and IGOs outlined above, we would maintain that as an organization still very different from IGOs, the IPU has achieved international legal personality through its participation in legally regulated international relations, without changing its features or its nature. 25
2.1.2 The International Criminal Police Organization (‘ICPO’/‘INTERPOL’)
The International Criminal Police Organization (‘ICPO’/‘INTERPOL’) was created with the aim “[t]o 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 … to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes”. 26 Established in 1923 as ‘the International Criminal Police Commission (‘ICPC’)’, INTERPOL has developed through the decades into an organization including members from ‘official police bodies’ from different states. 27 Therefore, the Members of INTERPOL are not formally states, but their ‘official police bodies’ whose functions come within the framework of activities of the Organization. 28 Consequently, INTERPOL also differs from IGOs in the fact that its basic act, the ‘Constitution’, is not considered in international law to be a treaty since its parties, although legal persons of public law in their states, are not accepted as subjects of international law. 29 However, INTERPOL received the recognition of its legal capacity within the domestic legal orders of various states, sometimes by their unilateral legal acts (eg in the United States), but also in bilateral treaties (eg the INTERPOL Headquarters Agreement with France). Thus, according to the US President Executive Order 12425, INTERPOL is designated as ‘a public international organization’ entitled to enjoy the privileges, exemptions and immunities conferred by the International Organizations Immunities Act; except those provided by section 2(c) relating to the immunity from search for the property and assets of international organizations, the portions of section 2(d) and section 3 relating to customs duties and federal internal-revenue importation taxes, and section 4, section 5, and section 6 of that Act, relating to the exemption from all property taxes for international organizations. 30 However, in 2009 President Obama amended this Executive Order by lifting limitations of diplomatic immunities set down in the above-mentioned exceptions. 31
Similarly, article 2 of the INTERPOL Headquarters Agreement between INTERPOL and the Government of the French Republic provides:
The Government of the French Republic recognises the Organization’s legal personality and, in particular, its capacity to:
- (a) enter into contracts;
- (b) acquire and dispose of movable and immovable property connected with its activities;
- (c) be party to judicial proceedings. 32
In addition, article 4 of the INTERPOL Headquarters Agreement stipulates that the Organization’s headquarters shall be inviolable. However, similarly to article 25, paragraph 1 of the Convention on Special Missions, the Secretary General’s consent shall be implicit in the case of fire or any other disaster requiring immediate action. Furthermore, according to article 5 of the INTERPOL Headquarters Agreement the Organization enjoys immunity from legal process except where the waiver expressly results from clauses in a contract, in the case of a counter claim directly linked to proceedings begun as a main action by the Organization, and, finally, in cases of a civil claim for damages arising from an accident caused by a motor vehicle belonging to the Organization or used on its behalf, or from a violation of road traffic regulations involving a motor vehicle belonging to the Organization or used on its behalf. This again seems analogous to article 31, paragraph 2(d) of the Convention on Special Missions regulating diplomatic privileges and immunities in the inter-state ad hoc diplomacy. Furthermore, the Organization’s official correspondence is also guaranteed according to article 8 of the INTERPOL Headquarters Agreement. At the same time, the Organization is exempt, according to article 10, from all direct taxation, as well as from all indirect taxes included in the price of goods sold or services rendered (art 11). In that sense, this provision seems even more favourable for INTERPOL than the analogous provision of article 34 of the VCDR which does not refer to the indirect taxes normally incorporated in the price of goods or services. Finally, according to article 17 of the INTERPOL Headquarters Agreement, the Organization’s staff enjoys immunity from legal process, even after they have ceased to serve INTERPOL, in respect of all acts performed in connection with their official duties and strictly within the limits of their official capacities.
Similar diplomatic-like privileges and immunities can be found for INTERPOL in other agreements concluded with a number of states, eg Argentina, Cameroon, Colombia, Côte d’Ivoire, El Salvador, Kenya, Singapore, Thailand, and Zimbabwe. Thus, for example, the Agreement between INTERPOL and the Republic of Cameroon regarding a sub-regional Bureau for Central Africa in Cameroon of 2007, 33 stipulates in article 9 that the premises of the Organization shall be inviolable. Agents and officials of Cameroon shall not enter them to perform any official duty except at the request or with the consent of the Organization’s Secretary General or his representative. However, such consent shall be implicit in the case of a serious incident calling for immediate protective action. Such provision again seems similar to article 25 of the Convention on Special Missions. 34 Of course, INTERPOL is obliged to “take all measures it considers appropriate to ensure that its premises does not become a refuge for persons wanted to serve a sentence, or pursued committing, attempting to commit or just having committed an offence, or against whom a judicial warrant has been made or a deportation ordered has been issued by the competent Cameroonian authorities” (art 10). The same Agreement provides INTERPOL various other diplomatic-like privileges and immunities. According to article 11, the archives of the Organization as well as the all documents belonging to or held by it in whatever form are inviolable wherever located. Equally, for example, according to article 14 INTERPOL staff members shall be granted the same exchange facilities as are accorded to diplomatic agents, as well as the right to import duty and tax free their furniture, and personal and household effects, within six months of taking up their duties in Cameroon. Similarly, article 3 of the Agreement between INTERPOL and the Republic of Cameroon on Privileges and Immunities provides that the inviolability of the Organization’s official correspondence shall be guaranteed and shall not be subject to censorship even when using codes. 35 Also, in accordance with article 4 of the Agreement, the Organization has a legal personality including the capacity to contract, to acquire and dispose of movable and immovable property, and to institute legal proceedings. In addition, according to article 5 of the Agreement, the Organization shall enjoy immunity from legal process except insofar as the INTERPOL Secretary General has expressly waived such immunity in a particular case, as well as in respect of a claim by a third party for damages arising from an accident caused by a vehicle belonging to the Organization or used on its behalf, or in respect of a motor traffic offence involving such a vehicle. Similar provision can be found not only in the above-mentioned article 31 of the Convention on Special Missions which refers to an action for damages arising out of an accident caused by a vehicle used outside the official functions, 36 but even in article 43, paragraph 2(b) of the Vienna Convention on Consular Relations (‘ VCCR ’) which provides the exemption from immunity in the case of a civil action by a third party for damage arising from an accident in the receiving state caused by vehicle, vessel or aircraft of the consular post. 37 In addition, there is a provision in article 9 of the Agreement similar to article 33 of the Convention on Special Missions exempting the Organization from all direct taxes. However, these provisions do not refer to indirect taxes included in the price of goods or services. Thereby, this provision is also analogous to article 34 of the VCDR . Additionally, article 11 of the Agreement exempts representatives from Members to the sessions of the Organization’s bodies or conferences and meetings, and their delegations, as well as the members of the Executive Committee, staff members of the General Secretariat and other officials including the interpreters, minute-takers, advisers, observers, experts invited by INTERPOL, but also their family members accompanying them, from immigration registration or alien registration for the duration of their functions. Furthermore, according to article 14 of the Agreement some of these persons enjoy immunity from personal arrest or detention and from seizure of their personal luggage, immunity from legal process in respect of all acts performed by them in their capacity, inviolability of all official papers and documents, and “the same facilities in respect of exchange restrictions as those granted to diplomatic agents”. Similarly, article 17 of the Agreement provides for the immunity from legal process for INTERPOL’s staff members in respect of all acts performed by them in connection with their official capacity, the exemption from all taxes on the salaries, emoluments, annuities, indemnities or allowances and pensions paid by the Organization, inviolability of all official papers and documents, but also the same facilities for repatriation in time of crises as granted to members of diplomatic missions. Analogously to the Preamble to the VCDR which states that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions”, article 20 of the Agreement provides that “the privileges and immunities are granted to members of General Secretariat staff solely in the interest of the Organization, not for their personal benefit”. The same ratio of diplomatic privileges and immunities can be found in regards to many IGOs, primarily the United Nations and the UN specialised agencies. 38
Similar provisions granting diplomatic-like privileges and immunities to INTERPOL can be found in the Agreement between the Government of the Republic of El Salvador and the ICPO/INTERPOL regarding a Sub-Regional Bureau for Central America and its Privileges and Immunities on Salvadoran Territory. 39 Moreover, it could be said that the recognised privileges in this Agreement perhaps go ‘too far’, for example in article 2 of that Agreement, stipulating that it is not only the duty of the Government to place at the Organization’s disposal all necessary suitably equipped premises for the functioning of the Bureau, but it is also the Government’s obligation “to subscribe to and settle invoices for water, electricity and building maintenance services”. Similarly to the above-mentioned provisions of articles 9 and 10 of the Agreement with Cameroon, this Agreement also provides for the inviolability for the Bureau’s premises where the Salvadoran agents and officials may enter “only with the consent of the Head of the Bureau or, in his absence, with that of his representative”. However, this consent shall also be “implicit in the case of fire or any other disaster requiring immediate action” (art 6). The Organization also has a duty to implement all the measures it considers necessary to ensure that the premises of the Bureau do not become a refuge from justice for persons seeking to evade the application of Salvadoran law (art 7).
Analogous provisions can be found in articles 5 and 6 of the Agreement between the Government of the Republic of Côte d’Ivoire and the ICPO/INTERPOL regarding a Sub-Regional Bureau for West Africa and its Privileges and Immunities on Ivorian Territory, 40 in articles 5 and 6 of the Agreement between the Government of the Republic of Kenya and the ICPO/INTERPOL regarding a Sub-Regional Bureau in Nairobi and its Privileges and Immunities on Kenyan Territory, 41 in article 5 of the Agreement between INTERPOL and The Government of the Republic of Singapore regarding the establishment of the INTERPOL Global Complex in Singapore, 42 in article 4 of the Agreement between the Government of the Republic of Argentina and the ICPO/INTERPOL regarding a Sub-Regional Bureau for South America and its Privileges and Immunities on Argentinean Territory, 43 as well as in articles 6 and 7 of the Agreement between the Government of the Republic of Zimbabwe and the ICPO/INTERPOL regarding a Sub-Regional Bureau in Harare and its Privileges and Immunities on Zimbabwean Territory. 44
As regards the Organization’s immunity from legal process in respect of civil suits, many of the above-mentioned Agreements, and also the Agreement between the ICPO/INTERPOL and the Government of the Kingdom of Thailand regarding the Privileges and Immunities of the INTERPOL Office for South-East Asia in Bangkok, 45 contain almost the same provision according to which INTERPOL shall enjoy immunity for the acts performed within the strict limits of its functions as provided for by the respective Agreements, except in the following three cases: a civil suit based on contractual obligations incumbent upon the Organization; a civil claim for damages arising from an accident caused by a motor vehicle belonging to the Organization or used on its behalf, or from a violation of road traffic regulations involving a motor vehicle belonging to the Organization or used on its behalf; and in the case of a counter-claim directly linked to proceedings begun as a main action by the Organization. 46 Consequently, all these Agreements explicitly recognise the Organization’s legal personality in their respective states’ legal orders, 47 sometimes more extensively than, for example, the provisions of articles 104 and 105, paragraph 1 of the Charter of the United Nations which provide seemingly limited legal capacity, privileges and immunities for the UN in its member-states “as may be necessary for the exercise of its functions” and “for the fulfilment of its purposes”. Thus, as a kind of exception, similarly to the provision of article 4 of the Agreement with Cameroon, the Agreement between INTERPOL and Columbia in article 1, paragraph a) does not provide any limitation to the Organization’s legal personality, civil, administrative, criminal immunity, or immunity with regard to the measures of execution, except in cases where the Organization explicitly waived its immunity. 48
On the other hand, all the above-mentioned Agreements are much more restrictive as regards the immunity of persons related to the Organization, providing immunity from arrest, detention and legal process for the delegates of INTERPOL Members, members of the Organization’s Executive Committee, Supervisory Board advisers, experts and officials of the Organization, but only in respect of the acts performed by them in the exercise of their official functions and strictly within the limits of their official capacities. Nevertheless, almost all the Agreements contain a common provision on granting these persons “the same facilities with regard to foreign exchange as are granted to diplomatic agents”. 49 Besides, similarly to article 24 of the VCDR , as well as article II, section 4 of the Convention on the Privileges and Immunities of the United Nations and article III, section 6 of the Convention on the Privileges and Immunities of the Specialized Agencies, 50 all these Agreements provide for the inviolability of the Organization’s archives, as well as all documents belonging to or held by it, in whatever form and wherever they are located. 51
The Agreement between INTERPOL and Singapore is worth particular consideration here: articles 14 and 15 refer to INTERPOL’s passive right of legation regulating privileges and immunities of the delegates from states’ official police bodies participating, according to the INTERPOL Constitution, as members or observers at conferences or meetings convened by the Organization. According to article 15 of the Agreement, these persons shall be granted immunity from arrest and detention, except in the case where the person is caught in the act of committing an offence, as well as from suit and legal process in respect of all acts performed by them in connection with their official duties and within the limits of their official capacities. This includes the inviolability of all their official papers and documents (para c). In addition, the same article provides the same facilities for these persons with regard to foreign exchange as are accorded to diplomatic agents (para d). 52 This provision can be compared to article IV, sections 11 and 12 of the Convention on the Privileges and Immunities of the United Nations, or article V, sections 13 and 14 of the Convention on the Privileges and Immunities of the Specialized Agencies, 53 but also to article 28 of the Vienna Convention on the Representation of States in their Relation with International Organizations of a Universal Character. 54
As we have seen, by all these Agreements, as well as the unilateral acts of the United States, in these states’ legal orders INTERPOL gained more than just recognition of its legal personality. It acquired not only the privileges and immunities analogous with those of IGOs and their officials, but sometimes even with those accorded to diplomatic agents of states. There is no doubt that some of these privileges and immunities have been at the core of diplomatic law for centuries.
Finally, it should be mentioned here that as of 2010 INTERPOL officials, analogously with those of some IGOs (eg the UN), can use the INTERPOL Travel Document ie, the ‘INTERPOL passport’ accepted by those countries whose ‘official police bodies’ participate in its membership.
These facts have been interpreted by some authors in such a way as to conclude that INTERPOL has been transformed into an IGO. 55 However, bearing in mind the substantial differences between INTERPOL and IGOs outlined above, this conclusion would seem to be an oversimplification. In fact, it is perhaps much more plausible to accept that this specific international entity, 56 composed of public law authorities from different states (just like the IPU), has achieved some elements of international legal personality through its participation in legally regulated international relations, rather than to equate it with IGOs ignoring the differences which clearly exist between IGOs and TGOs.
2.2 Diplomatic privileges and immunities for ‘advanced’ international non-governmental organizations
In international law there is no universally agreed-upon definition of an INGO. Thus, for example, article 1 of the 1986 European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations refers to non-governmental organizations as “associations, foundations and other private institutions” which satisfy four conditions:
- (a) have a non-profit-making aim of international utility;
- (b) have been established by an instrument governed by the internal law of a Party;
- (c) carry on their activities with effect in at least two states; and
- (d) have their statutory office in the territory of a Party and central management and control in the territory of that Party or of another Party. 57
Some authors, however, focus on only one of these elements—the INGOs’ non-governmental character. Thus, Rodley defines an NGO as “any group of individuals who have come together voluntarily to work for a particular objective, other than by means of governmental action”. 58 The private, non-governmental element of INGOs is also stressed by Charlotte Ku, who defines them as “voluntary organizations of individuals”. 59 Some authors require that such organizations “are not established by a government or by intergovernmental agreement”. 60 A similar provision can be found in the UN ECOSOC Resolution 288B(X) granting consultative status to certain NGOs with ECOSOC, 61 while the later ECOSOC resolutions on the same topic broaden the notion of the non-governmental character of an organization. These resolutions consider as non-governmental even those organizations “which accept members designated by governmental authorities, provided that such membership does not interfere with the free expression of views of the organization”. 62
Furthermore, there are many authors who, besides the non-governmental character of INGOs, emphasise their international character as well. However, although it may seem that there is a consensus in international law concerning this element, it is also sometimes understood in different ways. Some authors (possibly the majority) require that an organization, in order to be international, should gather its members from two or more countries. 63 Similarly, Willetts determines an INGO as an “organized group of individuals or organizations from more than one country”. 64 Sometimes, such requirements go even further and consider a non-governmental organization to be international if it has members from three countries, 65 six countries, 66 or even from different continents. 67
In contrast, some other definitions of INGOs, which seem to us more appropriate to functionally-based contemporary international relations, do not necessarily require the international character of organization as regards to its membership, but in terms of its aims and activities. This definition of INGOs as ‘international associations’ was proposed by the Institut de Droit International in its Resolution of 1950 defining the international character of these associations by exercising the activities of general, and not exclusively national, interest. 68
Finally, probably the least disputable element in defining the notion of INGOs is their non-profit-making character. Thus, for example, Lador-Lederer determines non-governmental organizations as non-profit-making. 69 The requirement for the INGOs’ non-profit-making character is also emphasised by some authors like Willetts 70 and Stošić, 71 and equally can be found in the Resolution of the Institut de Droit International, 72 and the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations of 1986, 73 as well as in the UIA Draft Convention aiming at facilitating the work of international non-governmental organizations. 74 Of course, this non-profit-making characteristic should not be understood as barring INGOs from making any profit at all in their activities. It means only that profit-making should not be their primary purpose. 75
Having discussed the above definitions, for the purposes of this paper we can determine INGOs as being organizations which are international in their aims and activities, non-governmental in their membership and non-profit-making in their objectives.
The functional ground of international relations followed by the technological development in the previous centuries has not only considerably facilitated co-operation across states’ borders, but has also led to the appearance of numerous private, non-governmental organizations and their active participation in more and more legally regulated relations in contemporary international community. Although such organizations, unlike IGOs, still wait for a place among the universally accepted subjects of international law, some of them already participate in international legal relations with states and IGOs (eg the UN), 76 sometimes obtaining some diplomatic-like privileges and immunities. As Tomuschat correctly remarked: “… some NGOs have been given a status that is modelled on regimes normally granted only to states or international organizations”. 77 Thus, on 1 November 2000 the International Olympic Committee concluded the Agreement with the Swiss Federal Council regarding the IOC’s status in Switzerland, providing the IOC with some of the diplomatic privileges usually granted to states and IGOs, ie independence and freedom of action of the IOC on Swiss territory (art 2), or the exemption from direct federal taxes (art 3). In addition, article 9 of the Agreement provides that “the Swiss authorities shall take all necessary measures to facilitate entry into Swiss territory, exit from this territory and stay of all members of the IOC as well as, as far as possible, all persons, whatever their nationality, who are called upon to work with the IOC in an official capacity”. 78
According to Tomuschat, some other NGOs, like the International Federation of Red Cross and Red Crescent Societies, went even further here. Based on the Status Agreement with the Berne authorities, the Federation was granted freedom of action, inviolability of premises and archives, immunity from jurisdiction and execution, tax exemption, preferential custom treatment similar to IGOs, privileges and immunities for the President of the Federation and the top management of its Secretariat similar to diplomatic agents, etc. 79 Equally, on the basis of the Headquarters Agreement between the International Committee of the Red Cross and the Swiss Federal Council relating to the legal status of the Committee in Switzerland of 19 March 1993, 80 the ICRC was granted similar privileges and immunities. The Federal Council recognised the ICRC’s international legal personality (art 1) together with inviolability of its premises, ie buildings or parts of buildings and adjoining ground used for the purposes of the ICRC, as well as the inviolability of the ICRC’s archives and all documents “at all times, wherever they may be” (arts 3 and 4). 81 Also, according to article 9 of the Agreement the ICRC shall enjoy for its official communications treatment “not less favourable than that accorded to the international organizations in Switzerland”. This includes the same privileges and immunities for its diplomatic bags and couriers. 82
In addition, according to article 5 of the Agreement the ICRC shall enjoy immunity from legal process and execution except, for example, “in respect of civil liability proceedings brought against the ICRC for damage caused by the vehicle belonging to it or circulating on its behalf”. Thus, the exception to immunity from legal process and execution includes the proceedings for damage caused by any vehicle belonging to or driven by the persons serving the ICRC in an official capacity (art 13). As noted above, such provision can be compared to article 31, paragraph 2(d) of the Convention on Special Missions, and even to article 43, paragraph 2(b) of the VCCR , but also to the provision in article 5 of the Agreement between INTERPOL and Cameroon, and in other similar agreements. 83 Furthermore, the ICRC is also exempt from direct federal, cantonal and communal taxation in Switzerland (art 6).
Finally, article 15 of the Agreement determines that the privileges and immunities provided for in the Agreement “are not designed to confer any personal benefits on those concerned”, but are “established solely to ensure the free functioning of the ICRC and the complete independence of the persons concerned in discharging their duties”. This provision obviously corresponds to the previously mentioned provisions of the VCDR , as well as to the Conventions on the Privileges and Immunities of the United Nations, and Specialized Agencies. 84 However, it is worth mentioning that, according to article 15, paragraph 2, the President of the ICRC “must waive the immunity of a staff member or expert in any case where he considers that such immunity would impede the course of justice and could be waived without prejudice to the interests of the ICRC” [emphasis added]. Moreover, according to the same provision the Assembly of the ICRC has the power to waive the immunity of the President or of the ICRC members. Similarly, it is worth pointing out here that the previously mentioned section 20 of the Convention on the Privileges and Immunities of the United Nations, and section 22 of the Convention on the Privileges and Immunities of the Specialized Agencies also provide not only the right, but the duty “of the UN Secretary-General”, and “of each specialised agency” to waive the immunity of any official in any case where such immunity would impede the course of justice. What is more, the former Convention in section 20 provides that in the case of the Secretary-General, the UN Security Council shall have the right to waive his immunity. 85
Of course, Switzerland is not the only state that has regulated the legal status of the ICRC on its territory. Many countries in which the ICRC acts through its missions and offices concluded similar agreements providing for it the same diplomatic-like privileges and immunities. Thus, for example, the ICRC signed similar headquarters agreements with Australia, Bangladesh, Croatia, Gabon, Mexico, Morocco, Nepal, Russian Federation, Sudan, Ukraine, the United States, and many other countries. These Agreements provide, among other things, similar diplomatic-like immunities from legal process except in the case of express waiver. However, some of them contain very detailed provisions on the ICRC’s privileges and immunities. Thus, the ICRC’s Headquarters Agreement with Nepal 86 in article III recognises the legal personality of the ICRC, thus enabling its delegation “to contract obligations, institute legal proceedings, acquire rights and to acquire and dispose of movable and immovable property, in accordance with the laws and regulations”. In addition, in article VII the Agreement provides the inviolability of the premises, property, assets and archives of the Delegation, ie the ICRC office in Nepal. Furthermore, the assets, premises and other property of the Delegation are exempt from all direct taxes, but also from all indirect taxes including value-added taxes for which the Government shall make appropriate arrangements for the remission or reimbursement “equivalent to facilities provided to intergovernmental organisations working in Nepal” (art IX). Similarly, according to article X of the Agreement, the Delegation shall enjoy for its official communications the same treatment as accorded to intergovernmental organizations, being “free to use the means of communications it deems most appropriate for its contacts, in particular with ICRC headquarters in Geneva, with other related international agencies and organisations, with government departments, and with bodies corporate or private individuals”. This privilege includes the right to dispatch and receive correspondence by courier or in sealed bags, which shall have the same immunities and privileges as diplomatic courier and bags (art X, para 4). Moreover, the same paragraph explicitly provides that “the ICRC official mail should in any case not be read”. Finally, the Agreement provides that the “members of the Delegation, their spouses and dependent children shall have the same status as that accorded to the members of international inter-governmental organisations” (art XII, para 1). They enjoy immunity, even after they have left the service of the Delegation, from any form of legal or administrative process, including personal arrest or detention, seizure of their personal baggage and from being called as a witness in respect of all acts performed in their official capacity. Equally, their private residences, vehicles, documents, manuscripts and all other personal effects shall be inviolable. They shall also be exempt from all immigration fees and restrictions as well as from all taxes on salaries and other emoluments (art XII).
Similar provisions on the privileges and immunities of the ICRC can be found in the Arrangement between the Government of Australia and the ICRC of 2005. 87 Its article 1 provides that “the status of the ICRC in Australia will be comparable to that of an intergovernmental organization”. Furthermore, according to article 3 the ICRC, its property and assets, wherever located and by whomsoever held, will enjoy immunity from every form of legal process, except insofar as in any particular case the ICRC has expressly waived its immunity. However, this immunity does not extend to a suit or other legal process for the recovery of damages in respect of any damage, injury or death resulting from an accident in which a motor vehicle owned by, or operated on behalf of the ICRC was involved, as well as to any contract entered into by the ICRC for supply of goods or services, any loan or other transaction or any contract of guarantee or indemnity to which the ICRC is a party. Equally, the immunity does not extend to a counter-claim made against the ICRC by a party to proceedings instituted by the ICRC, or to remuneration by the ICRC to its employees and experts, in accordance with a final order of an Australian court (art 3, para 2). In addition, article 4 of the Arrangement provides the inviolability of the ICRC’s premises, property and assets including the immunity from search, requisition, confiscation, or expropriation. According to the same article, no authorities of Australia will enter the premises of the ICRC without the consent of the ICRC. However, such consent will be deemed to have been provided “in the case of fire or other emergency requiring immediate protective action” (para 2). This provision on the inviolability of the ICRC’s premises can be compared to the above-mentioned provision of article 25 of the Convention on Special Missions, but also to article 4 of the Headquarters Agreement between INTERPOL and the Government of the French Republic, 88 as well as to the other earlier-mentioned agreements with INTERPOL. 89 Furthermore, article 5 of the Arrangement guarantees the inviolability of the ICRC’s archives and, in general, all documents belonging to it or held by it, wherever located. This provision is comparable to provisions of the VCDR , and the Conventions on the Privileges and Immunities of the United Nations and of Specialized Agencies, as well as to similar INTERPOL Agreements. 90 Moreover, article 6 provides that “the ICRC will enjoy in Australia for its official communications treatment not less favourable than accorded by the Government to any other international organisation or diplomatic mission”. In addition, according to article 8 of the Arrangement the ICRC is exempt from customs duties or any equivalent charge, restrictions and prohibitions on the import, export or transit through Australia of articles for official use or intended for ICRC assistance programs within Australia or in another country.
The analogy of these privileges and immunities to those provided for in the VCDR , the Convention on Special Missions, or in the Convention on the Privileges and Immunities of the United Nations and in the Convention on the Privileges and Immunities of the Specialized Agencies, could go on. Unfortunately, in some countries such agreements with the ICRC are classified, 91 or are just not published in the official gazettes. Thus, for example, the Republic of Croatia concluded such an Agreement on 20 April 1994, providing the ICRC, among other things, immunities from legal process except in the case of an express waiver. However, the Agreement has never been ratified and published in the Official Gazette of the Republic of Croatia since the Croatian Parliament, bearing in mind the disputed international legal personality of the ICRC, does not consider the Agreement an ‘international treaty’. 92 In spite of that, article 19 of the Agreement provided for its provisional application pending its entry into force. 93
On the other hand, sometimes similar diplomatic-like privileges and immunities are recognised by states even for foreign single-country NGOs, based on bilateral agreements with the states of their registration. Thus, for example, according to article 3D of the Agreement between the Government of the Republic of Croatia and the Government of the United States of America concerning Economic, Technical and Related Assistance of 6 May 1994, “private organizations under contract with or financed by the Government of the United States of America and their employees, who are present in the Republic of Croatia to perform work in connection with this Agreement, shall be immune from all civil liability directly related to the performance of such work”. 94 In addition, article 3E of that Agreement provides that the persons who are present in the Republic of Croatia to perform work in connection with this Agreement and who are not members of the US diplomatic mission, except nationals or permanent residents of Croatia, “shall be exempt from income and social security taxes levied under the laws of the Republic of Croatia and from taxes on purchase, ownership, use or disposition of personal movable property intended for their own use”. According to the same provision, “such personnel (and their families) shall be exempt from customs, import, and export duties on all personal effects, equipment and supplies (including food, beverages and tobacco), imported into the Republic of Croatia for their own use, and from all other duties and fees with respect to such personal effects. Such personnel (and their families) shall be immune from criminal and civil liability to the same extent as comparable personnel of the (US) diplomatic mission”.
Based on these provisions, a municipal court and a county court in Croatia declared lack of jurisdiction in a case where such a ‘private organization’ (the International Rescue Committee Inc from New York), was a party. 95 Moreover, the Supreme Court of the Republic of Croatia confirmed these decisions. 96
As a final point, the decision of the Constitutional Court of Croatia in this case, although contrary to the decisions of the other courts, is relevant to the subject of this paper. The Constitutional Court found that the ‘private organization’ in question stipulated the jurisdiction of the Croatian Municipal Court in its employment contract and in spite of the previous decisions made by the municipal and county courts and the Supreme Court, correctly interpreted this provision as an expressed waiver of immunity in accordance with the analogous provision in article 32, paragraph 2 of the VCDR. 97
3 Concluding Remarks: Emerging New Diplomatic Law?
Diplomatic relations, and accordingly their legal regulation, are probably as old as the participants in them given that they have never been an end in themselves. For centuries, diplomatic relations have developed alongside the development of the international community, ie international relations and their participants. For that reason, the history of diplomatic law cannot be understood in isolation from the concept of international legal personality. Although state-centric in the beginning, diplomatic law gradually incorporated the emergence of other, non-territorially but functionally determined participants in international legal relations, and as such new subjects of international law, extending its norms to IGOs in the second half of the 20th century. The diplomatic privileges and immunities present for centuries in inter-state diplomatic relations in the form of customary international law and codified in the VCDR and the Convention on Special Missions, 98 were significantly extended to embrace IGOs, confirming the functional ratio of contemporary diplomatic law. It is no surprise that the most significant universal IGOs (like the UN and its specialised agencies) ‘broke the ice’ here. Moreover, according to Amerasinghe “the argument may be made that particularly since the end of the Second World War the acceptance of the conventional law, especially the UN Convention and the Convention on the Privileges and Immunities of the Specialized Agencies, has given rise to practice which has resulted in the creation of customary international law”. 99 However, the social process in the international community and international law, including diplomatic law, did not stop here.
In fact, the functional logic of international relations and the accelerated technological development of the previous two centuries went further leaving states faced with the necessity of delegating some of their competencies in international relations to their central organs such as, parliaments, ‘official police bodies’, even local authorities, as well as to non-governmental entities, capable, due to their knowledge, experience and influence, of making international co-operation more successful. Hence, the increasing number of IGO-like entities such as TGOs and INGOs has necessarily led to the appearance of diplomatic-like relations, and consequently to the necessity of their legal regulation commencing a new stage in the development of diplomatic law.
This paper focused on some of the most advanced, or most illustrative, IGO-like entities, primarily among TGOs and INGOs which seem to be at the forefront today. Attention was drawn to the legal solutions concerning their privileges and immunities which are analogous to those contained in classic diplomatic law, ie in the VCDR and the Convention on Special Missions, as well as in multilateral diplomacy, ie in the Convention on the Privileges and Immunities of the United Nations, the Convention on the Privileges and Immunities of the Specialized Agencies, and the Vienna Convention on the Representation of States in their Relation with International Organizations of a Universal Character. Such analogous legal solutions regulating diplomatic-like relations between states and these new participants in international relations are currently mostly contained in bilateral agreements. However, not only the analogy, but also the growing number of such agreements with numerous states raises the question of the emergence of a new customary law due to the uniformity of states’ practice and its acceptance as law (opinio juris), 100 particularly in regard to TGOs. Even if there is doubt about the legal nature of such agreements as sources of international law, this should not be the decisive criterion in the process of the creation of customary law. Thus, Degan points out, “[i]n a larger sense, any national legislation or administrative ruling can also be embraced under the notion of the state practice”. 101 What is more, the same author continues, “[o]n the other hand, all normative acts of a state are of importance in customary process, because the state in question cannot later on deny their existence”. 102 Besides, not only state participation in these agreements and their rising number, but also the implementation of agreements could have a probative value in identification of opinio juris.
However, such development seems to us more like proof of the functional ratio of diplomatic law than a revolutionary stage in its long history. Like international law in general, diplomatic law has always been characterised much more by evolution than revolution, following the meta-juridical logic of functionality in international relations and the co-operation of their participants. Therefore, we believe that the IGO-like entities entering into diplomatic-like relations could influence the development of diplomatic law through the process of the creation of customary law, perhaps in the not-so-distant future leading towards its new codification.
Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964) (‘ VCDR ’).
Convention on Special Missions, opened for signature 16 December 1969, 1400 UNTS 231 (entered into force 21 June 1985).
Thus, for example, in his Manual of International Law in 1902, Liszt began the chapter on subjects of international law with the following words: “Only states are subjects of international law—holders of international rights and duties”. In German: “Nur die Staaten sind Subjekte des Völkerrechts: Träger von völkerrechtlichen Rechten und Pflichten”: F von Liszt, Das Völkerrecht – systematisch dargestellt (Verlag von O Haering, 1902) 34. A similar attitude was expressed by the Permanent Court of International Justice in the Case of the S S ‘Lotus’ in 1927: “International law governs relations between independent states”: S S ‘Lotus’ (France v Turkey) (Judgment)  PCIJ (ser A) No 10, 18.
Although the first modern international organizations appeared in the second half of the 19th century (like the International Telegraphic Union (‘ITU’) in 1865, and the Universal Postal Union (‘UPU’) in 1874), the Advisory opinion of the ICJ in the Reparation Case in 1949 has usually been considered a turning point for the recognition of IGOs’ legal personality in international law. The Court accepted the objective international legal personality of the United Nations based on the argument “that fifty states, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality …”: Reparation for injuries suffered in the service of the United Nations (Advisory Opinion)  ICJ Rep 174 (‘Reparation Case’) 185.
Convention on the Privileges and Immunities of the United Nations, opened for signature 13 February 1946, 1 UNTS 15 (entered into force 17 September 1946).
Convention on the Privileges and Immunities of the Specialized Agencies, opened for signature 21 November 1947, 33 UNTS 261 (entered into force 2 December 1948).
Vienna Convention on the Representation of States in their Relation with International Organizations of a Universal Character, opened for signature 14 March 1975, UN Doc A/CONF.67/16 (not yet in force).
G G Fitzmaurice, ‘Law of Treaties’  2 Yearbook of the International Law Commission 104, art 3(b).
Eg, the Holy See is a member of the FAO, IFAD, UPU, and several other IGOs.
See, eg, C Archer, International Organizations (Routledge, 3rd ed, 2001) 40.
Among these organizations, we can mention, for example, the Assembly of European Regions (‘AER’), Association of European Border Regions (‘AEBR’), Working Community Akershus–Hedemark, the Meuse–Rhine Euregion, in Europe, MERCOCIUDADES in Latin America. For more details on this issue, see, eg, D Lapaš, ‘Interregional Organizations (IROs) in Europe: New Subjects of Contemporary International Law?’ (2014) 12(2) Brazilian Journal of International Law 453–476.
For more details, see section 2.2.
Eg, the International Union for the Conservation of Nature and Natural Resources (‘IUCN’). The acronym QUANGO has been in use since the 1990s, eg in P Willetts (ed), ‘The Conscience of the World’ – The Influence of Non-Governmental Organizations in the UN System (The Brookings Institution, 1996) 7.
See, eg, Archer, above n 10, 38–40.
This being so, it is necessary to draw a distinction between some IGOs where the member-states act through their organs (such as ‘the competent national administrations’ in the World Health Organization, ‘State services’ in the World Meteorological Organization, ‘Governors of central national banks’ in the International Monetary Fund, etc.), and the organizations having formally in their membership the states’ organs (like parliaments, ministries, or other State authorities) as full members.
For the list of IPU Member Parliaments, see <http://www.ipu.org/english/membshp.htm>.
See the Statutes of the Inter-Parliamentary Union (‘ IPU Statutes’), as revised and amended by October 2011 <http://www.ipu.org/strct-e/statutes-new.htm>.
Equally, according to art 3(2) of the IPU Statutes, even the parliament of a territorial entity whose aspirations and entitlement to statehood are recognized by the United Nations, and which enjoys the status of Permanent Observer to that Organization may also become a Member of the IPU.
Agreement between the Swiss Federal Council and the Inter-Parliamentary Union to settle the Juridical Status of the Inter-Parliamentary Union in Switzerland, signed 1971 <http://www.ipu.org/finance-e/siege.pdf> (‘ IPU Headquarters Agreement’).
Exchange of notes constituting an agreement concerning the reimbursement of income tax, United States of America—Inter-Parliamentary Union, signed 17 September 1981, 1549 UNTS 383 (entered into force 27 October 1981).
‘Executive Order 13097—Inter-Parliamentary Union’, signed 7 August 1998, (1998) 34(32) Weekly Compilation of Presidential Documents 1588 <https://www.govinfo.gov/app/details/WCPD-1998-08-10/WCPD-1998-08-10-Pg1588>.
See art I(1), art II(3), (4), and (7), art V(18)(a) of the Convention on the Privileges and Immunities of the United Nations (above n 5). See also art II(3), art III(5), (6), and (9), art VI(19)(a) of the Convention on the Privileges and Immunities of the Specialized Agencies (above n 6).
See, eg, art III(9)(a) of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, signed 26 June 1947, 11 UNTS 11 (entered into force 21 October 1947).
See, eg, I Brownlie, G S Goodwin-Gill, Joint Opinion on the international legal personality of the IPU, its status as an international organization in international law, and the legal implications of such status for the IPU’s relations with governments and other international organizations, IPU Doc EX/229/9-Inf.1 (5 October 1999) <http://www.ipu.org/finance-e/opinion.pdf>. See also R V Williams, The Information Systems of International Inter-Governmental Organizations: A Reference Guide (Ablex Publishing Corporation, 1998) 325–327. However, there is an opposite understanding of the IPU’s legal nature in the international law doctrine. Thus, for example, Schermers and Blokker stated: “… [I]ts purpose is strictly limited to parliamentary cooperation. Governments do not take part. The IPU is therefore generally classified as a non-governmental organization”: H G Schermers and N M Blokker, International Institutional Law (Martinus Nijhoff, 5th ed, 2011) 39.
Thus, Arndt concludes: “While the status of the IPU under international law has remained controversial, it has been given the same participatory rights as subjects of international law in this regard”: F Arndt, ‘Inter-Parliamentary Union (IPU)’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012) vol 6, 251.
ICPO-INTERPOL Constitution, art 2 and . The text of the Constitution is available at: <http://www.interpol.int/About-INTERPOL/Legal-materials/The-Constitution>.
Ibid, art 4.
In spite of this, the official INTERPOL website uses the term ‘member countries’; see <http://www.interpol.int/Member-countries/World>.
Thus, Gallas stated: “Interpol is not an international organization. It is therefore not a subject of international law and has no jurisdiction of its own”: A Gallas, ‘INTERPOL’, in R Bernhardt (ed), Encyclopedia of Public International Law (Elsevier, 1995) vol 2, 1414.
‘Executive Order 12425—International Criminal Police Organizations’, signed 16 June 1983, (1983) 3 Code of Federal Regulations 193. Also available at G Peters and J Woolley, Executive Order 12425—International Criminal Police Organizations (16 June 1983) The American Presidency Project <http://www.presidency.ucsb.edu/ws/index.php?pid=41483>.
‘Executive Order 13524—Amending Executive Order 12425 Designating Interpol as a Public International Organization Entitled To Enjoy Certain Privileges, Exemptions, and Immunities’, signed 16 December 2009, (2009) 74(243) Federal Register 67803. Also available at G Peters and J Woolley, Executive Order 13524—Amending Executive Order 12425 Designating Interpol as a Public International Organization Entitled To Enjoy Certain Privileges, Exemptions, and Immunities (16 December 2009) The American Presidency Project <http://www.presidency.ucsb.edu/ws/index.php?pid=87003>.
The Agreement between the International Criminal Police Organization-INTERPOL and the Government of the French Republic regarding INTERPOL ’s headquarters in France, signed 14 April 2008. According to article 26, this Agreement abrogated the Agreement between the Government of the French Republic and INTERPOL, signed 3 November 1982 <http://www.interpol.int/About-INTERPOL/Legal-materials/Fundamental-texts>.
See Agreement between the International Criminal Police Organization (ICPO-INTERPOL) and the Republic of Cameroon regarding a Sub-regional Bureau for Central Africa in Cameroon, signed 26 March 2007 <https://www.interpol.int/contentinterpol/search/(offset)/10?SearchText=cameroon>.
Convention on Special Missions, above n 2.
Agreement between the International Criminal Police Organization (ICPO-INTERPOL) and the Republic of Cameroon on the Privileges and Immunities of the ICPO-INTERPOL on Cameroonian Territory, signed 26 March 2007 <https://www.interpol.int/en/Media/Files/Legal-material/Headquarters-Agreements/Agreements-between-the-ICPO-INTERPOL-and-the-Republic-of-Cameroon-AGN-2007-RAP-08-signed-on-26th-March-2007-On-Privil%25C3%25A8ges-et-immunities-of-the-ICPO-INTERPOL-on-Cameroonian-territory/> (‘Agreement between INTERPOL and the Republic of Cameroon on Privileges and Immunities’).
Convention on Special Missions, above n 2.
1963 Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 262 (entered into force 19 March 1967).
Thus, article V, section 20 of the Convention on the Privileges and Immunities of the United Nations of 1946 states: “Privileges and immunities are granted to officials in the interest of the United Nations and not for the personal benefit of the individuals themselves”. The analogous provision can be found in article VI, section 22 of the Convention on the Privileges and Immunities of the Specialized Agencies of 1947: “Privileges and immunities are granted to officials in the interest of the specialized agencies only and not for the personal benefit of the individuals themselves”. For the text of the Conventions, see above nn 5–6.
The Agreement was signed in San Salvador City on 25 June 2001. Unpublished Agreement on file with author.
The Agreement was signed in Abidjan on 7 September 1994. Unpublished Agreement on file with author.
The Agreement was signed in Nairobi on 11 September 1999. Unpublished Agreement on file with author.
The Agreement was signed in Doha on 9 November 2010. Unpublished Agreement on file with author.
Acuerdo entre El Gobierno de la República Argentina y la Organización internacional de policía criminal (INTERPOL) relativo a la sede de una Oficina subregional para América del Sur, signed 22 May 1990. The Agreement was signed in Spanish language in Buenos Aires, and amended by the Protocol of 3 November 2014 <http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/584/norma.htm>.
The Agreement was signed in Harare on 3 February 1997. Unpublished Agreement on file with author.
The Agreement was signed in Bangkok on 4 February 1987. Unpublished Agreement on file with author.
See above, respectively nn 39–45, art 8 (El Salvador), art 7 (Côte d’Ivoire), art 7 (Kenya), art 6 (Singapore), art 5 (Argentina), art 8 (Zimbabwe), and art 4 (Thailand).
See above art 4 (Cameroon), art 3 (El Salvador), art 2 (Côte d’Ivoire), art 3 (Kenya), art 3 (Singapore), art 2 (Argentina), art 3 (Zimbabwe), and art 1 (Thailand).
This provision reads as follows: “The Organization shall enjoy immunity from jurisdiction in the case of civil suits, administrative and criminal jurisdiction as well as in respect of the execution of the judgement, for which a separate waiver shall be necessary”. In Spanish: “La Organización gozará de inmunidad de jurisdicción en caso de acción civil, administrativa, penal y de ejecución, a excepción de los casos en que renuncie expresamente a esa inmunidad”. The Agreement was signed at Lyon on 26 September 2012 and Bogotá on 13 November 2012. Unpublished Agreement on file with author.
See above art 18 (El Salvador), art 19 (Côte d’Ivoire), art 17 (Kenya), art 17 (Singapore), art 15 (Argentina), art 18 (Zimbabwe), and art 11 (Thailand).
For the text of Conventions, see above nn 1, 5 and 6.
See above art 11 (Cameroon), art 10 (El Salvador), art 9 (Côte d’Ivoire), art 9 (Kenya), art 8 (Singapore), art 7 (Argentina), art 10 (Zimbabwe), art 6 (Thailand), and art 1(b) (Colombia).
For the text, see above n 42. Cf also art 11 of the Agreement between INTERPOL and the Republic of Cameroon on Privileges and Immunities, above n 35.
These articles provide for the representatives of members of the United Nations and Specialized Agencies, for example, the immunity from arrest or detention in respect of words spoken or written and all acts done in their official capacity. For the text of the Conventions, see above n 5 and 6.
According to this provision, the personal immunity of the head of mission and of the members of the diplomatic staff of the mission is not restricted only to the acts done in their official capacity. It includes the inviolability from any form of arrest or detention and immunity from criminal jurisdiction, as well as from civil and administrative jurisdiction except in the same cases as provided for in article 31 of the VCDR . See above, n 7.
See, eg, E J Osmańczyk, Encyclopedia of the United Nations and International Agreements (Routledge, 2003) vol 2, 1102; J M Rutsel Silvestre, The Legal Foundations of INTERPOL (Hart Publishing, 2010) 22–23, 138–154. Schermers and Blokker, although admitting that “there is difference of opinion as to the status of the International Criminal Police Organization (INTERPOL)” and confirming at the same time that “agreements between branches of different governments or between particular public authorities do not normally create international organizations”, consider the Headquarters Agreement between INTERPOL and France proof for the intergovernmental status of that organization. Schermers and Blokker, above n 24, 40.
Thus, Gless states: “Membership of the organization is not attained through a treaty, and police forces, not governments, are the true Interpol participants”. For these reasons she considers that “its technical status remains unclear”. See S Gless, ‘Interpol’, in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012) vol 6, 257.
European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations, opened for signature 24 April 1986, ETS 124 (entered into force 1 January 1991).
N S Rodley, ‘Human Rights NGOs: Rights and Obligations (Present Status and Perspectives)’, in T C van Boven et al (eds), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors (Netherlands Institute of Human Rights, 1997) 44. Similarly, Hart and Thetaz-Bergman determine the entire non-governmental sector in this way: “The nongovernmental sector is best defined by exclusion; it includes all those persons, individually and collectively, who are not formally within the government”: S N Hart and L Thetaz-Bergman, ‘The Role of Nongovernmental Organizations in Implementing the Convention on the Rights of the Child’ (1996) 6(2) Transnational Law and Contemporary Problems 376.
C Ku, ‘The Developing Role of Non-governmental Organizations in Global Policy and Law Making’ (1995) 13 Chinese Yearbook of International Law and Affairs 142.
H H-K Rechenberg, ‘Non-governmental Organizations’, in R Bernhardt (ed), Encyclopedia of Public International Law (Elsevier, 1995) vol 2, 612.
“Any international organization which is not established by inter-governmental agreement shall be considered as a non-governmental organization …”: Resolution 288B(X), ECOSOC Res 288B(X), UN ESCOR, 10th sess, Supp No 1, UN Doc E/1661 (27 February 1950) Part I. Cf also L C White, International Non-Governmental Organizations (Rutgers University Press, 1951) 3.
See Resolution 1296(XLIV), ECOSOC Res 1296(XLIV), UN ESCOR, 44th sess, Supp No 1, UN Doc E/4548 (23 May 1968) Part I, and Resolution 1996/31, ECOSOC Res 1996/31, UN ESCOR, Supp No 1, UN Doc E/1996/96 (25 July 1996) Part I. It is worth noting here the ‘hybrid’ or ‘quasi non-governmental organizations’ (‘QUANGOs’) mentioned previously and which include members from single-country NGOs, as well as individuals from various states together with governmental or intergovernmental entities such as states and IGOs. Therefore, QUANGOs should be understood as a kind of ‘symbiosis’ between the governmental and non-governmental sector where both categories of members accept one another as equal participants in the decision-making process within the organization. Such mixed participation is usually determined by the purpose of an organization whose functioning is dependent on such co-operation. See above, Chapter 2.
See, eg, White, above n 61, 7. See also L Cavaré, Le droit international public positif (Pedone, 1951) vol 1, 488–489. Cf R Jennings and A Watts (eds), Oppenheim’s International Law (Longman, 9th ed, 1992) 21.
Willetts (ed), above n 13, 5.
See N Sybesma-Knol, Non-State Actors in International Organizations: An Attempt at Classification, in T C van Boven et al (eds), The Legitimacy of the United Nations: Towards an Enhanced Legal Status of Non-State Actors (Netherlands Institute of Human Rights, 1997) 29.
See Draft Convention aiming at facilitating the work of international non-governmental organizations, submitted to UNESCO by the Union of International Associations (‘UIA’). For the text, see Union of International Associations (ed), 1 International Association Statutes Series (K G Saur, 1988), appendix 4.10.
See B Stošić, Les organisations non gouvernementales et les Nations Unies (Librairie Droz, 1964) 77.
In French: “Les associations internationales … sont des groupements de personnes ou de collectivités … qui exercent … une activité internationale d’intérêt général, en dehors de toute préoccupation d’ordre exclusivement national”. Les conditions d’attribution d’un statut international à des associations d’initiative privée, Projet de Convention, art 2 (1950) XLIII(II), Session de Bath – 1950, Annuaire de l’Institut de Droit International 384.
See J J Lador-Lederer, International Non-governmental Organizations and Economic Entities (A W Sythoff, 1963) 60.
See Willetts (ed), above n 13, 5.
See Stošić, above n 67, 77 and 311.
See above n 68, 384.
European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations, above n 57.
See above n 66.
Understood in this way, even ‘business INGOs’ (BINGOs) should not be excluded from the definition of INGOs. See Archer, above n 10, 38–40.
Currently, more than 4,500 NGOs enjoy consultative status with ECOSOC. See <http://csonet.org/?menu=100>. There are 149 organizations in general consultative status, 3389 in special consultative status and 975 on the Roster. For the list, List of non-governmental organizations in consultative status with the Economic and Social Council as of 1 September 2016, UN Doc E/2016/INF/5 (29 December 2016) <http://undocs.org/E/2016/INF/5>.
C Tomuschat, ‘General Course of Public International Law’ (1999) 281 Collected Courses of the Hague Academy of International Law: Recueil des Cours 159.
For the text, see <https://archive.icann.org/en/psc/annex6.pdf>. For more details see also J P Chappelet and B Kübler-Mabbott, The International Olympic Committee and the Olympic System – The Governance of World Sport (Routledge, 2008) 107.
Tomuschat, above n 77, 159.
For the text, see <https://www.icrc.org/eng/resources/documents/misc/57jnx7.htm>.
Cf VCDR art 22, and especially art 24, which use almost the same wording: “The archives and documents of the mission shall be inviolable at any time and wherever they may be”. See also article II, section 4 of the Convention on the Privileges and Immunities of the United Nations and article III, section 6 of the Convention on the Privileges and Immunities of the Specialized Agencies, see above nn 1, 5 and 6.
Cf art 27 of the VCDR , see above n 1.
Cf above nn 35 and 46.
Cf above n 38.
See above nn 5 and 6.
Headquarters Agreement between His Majesty’s Government of Nepal and the International Committee of the Red Cross on the Establishment of Delegation in Kathmandu, Nepal, signed 20 January 2003 <http://nepalconflictreport.ohchr.org/files/docs/2003-01-20_document_govt-of-nepal-and-icrc_eng.pdf>.
Arrangement between the Government of Australia and the International Committee of the Red Cross (‘ICRC’) on a Regional Headquarters in Australia, signed 24 November 2005. For the status of the ICRC in the Australian legal order, see also International Organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth) <https://www.legislation.gov.au/Details/F2013L01916>.
See above n 32.
See above nn 39–45.
Cf above nn 50–51.
Thus, for example, VanLandingham points out that “[T]he US–ICRC headquarters agreement is treated as a classified document and is not available for review or citation”. R E VanLandingham, ‘US Modern Military Operation and the International Committee of the Red Cross: The Department of Defense’s Unique Relationship with the Guardian of International Humanitarian Law’, in G S Corn, R E VanLandingham, and S R Reeves (eds), US Military Operations—Law, Policy, and Practice (Oxford University Press, 2016) 393.
According to article 141 of the Constitution of the Republic of Croatia, only “international treaties which have been concluded and ratified in accordance with the Constitution, published and which have entered into force shall be a component of the domestic legal order of the Republic of Croatia and shall have primacy over domestic law”: Constitution of the Republic of Croatia (2010) 85 Narodne novine—međunarodni ugovori, (Official Gazette of the Republic of Croatia). The English version is available at <http://www.sabor.hr/Default.aspx?art=2405>.
Unpublished Agreement on file with author. Cf 1969 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS, 1980 332 (entered into force 27 January 1980) art 25.
For the text of Agreement, see (1995) 3 Narodne novine – međunarodni ugovori (Official Gazette of the Republic of Croatia).
See Pr-355/01-7 (18 March 2002), and Gž 732/02-3 (8 April 2002). The International Rescue Committee Inc as an NGO enjoys special consultative status with the UN ECOSOC. See above n 76. See also <http://esango.un.org/civilsociety/showProfileDetail.do?method=showProfileDetails&profileCode=1801>.
See Revr 589/02 (26 November 2002).
For the text of the Decision of the Croatian Constitutional Court, see U-III-1150/2003; (2005) 147 Narodne novine (Official Gazette of the Republic of Croatia).
See above nn 1–2.
C H Amerasinghe, Principles of the Institutional Law of International Organizations (Cambridge University Press, 2nd ed, 2005) 344–345.
Thus, for example, the International Law Commission in its Report of 2016 on the identification of customary international law confirmed that the treaty rule can give rise “to a general practice that is accepted as law (opinio juris), thus generating a new rule of customary international law”. See ‘Report of the International Law Commission on the Work of its Sixty-eighth session (2 May—10 June and 4 July—12 August 2016)’  II(2) Yearbook of the International Law Commission 78, 105–106. Thus, as Jennings and Watts pointed out: “No fixed time can be set for the evolution of such treaty rules into rules of customary international law. The process whereby a treaty’s provisions may come also to be rules of customary law is of considerable significance for the role of treaties in international law”: Jennings and Watts (eds), above n 63, 1204–1205.
V D Degan, Sources of International Law (Martinus Nijhoff 1997) 156.