GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS: THE

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GLOBAL ADMINISTRATIVE LAW

MEETS “SOFT” POWERS:

THE UNCOMFORTABLE CASE OF INTERPOL

RED NOTICES

ARIO

AVINO

I. I

NTRODUCTION

: I

NTERPOL AND

UBLIC

...... 264

II. S

ETTING THE

CENE

: I

NTERPOL

’

ANDATE AND

ECHANISMS FOR

VERSIGHT

.................... 270

A. The Nature of Interpol ........................ 270

B. Functional Needs in International Police

Cooperation: The Imperatives of Consent and

Neutrality ................................... 275

C. Normative Concerns About Interpol’s

Accountability: Neither “Transmission Belt” nor

“Interest Representation” ...................... 280

III. I

NTERPOL AND

“S

OFT

” A

DMINISTRATIVE

OWERS

... 285

A. Red Notices: Basic Features .................... 286

B. The Kazakh Case (I): The Impact on Personal

Freedom ..................................... 291

C. Red Notices as “Soft” International Administrative

Acts ......................................... 295

IV. R

OTICES AND

EGAL

CCOUNTABILITY

....... 299

A. The Kazakh Case (II): The Administrative

Control ...................................... 302

1. Ex Ante Scrutiny ......................... 303

2. Ex Post Review ........................... 311

* Associate Professor of Administrative Law, Tuscia University of

Viterbo; Global Eastman Research Fellow, Hauser Global Law School Pro-

gram, New York University (2008-09). E-mail: [email protected];

[email protected]. I thank Stefano Battini, Francesca Bignami, Ar-

min von Bogdandy, Iris Canor, Sabino Cassese, Matthias Goldmann, Bene-

dict Kingsbury, Richard Stewart, Joseph Weiler, and David Zaring, as well as

the participants in the Global Forum at NYU School of Law, for their com-

ments on an earlier version of this paper. Many thanks also belong to Yaron

Gottlieb (Counsel, Interpol) and the Secretariat of the Commission for the

control of Interpol’s files (CCF) for patiently introducing me to the techni-

calities that govern Interpol processing of red notices. Finally, I gratefully

acknowledge financial support from the N.Y.U. Hauser Global Program. The

usual disclaimer applies.

263

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264 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

B. The AMIA Case: The Political Control.......... 315

1. Diplomatic Review ........................ 318

C. Any Room for Improvement? ................... 322

1. The Analytical Framework: Red Notices and

Global Administrative Procedures ........... 323

2. In Search of a Balance: Due Process in

Context .................................. 326

V. G

LOBAL

EGAL

TUDIES AND

“S

OFT

” P

OWERS

HREE

ONCLUSIONS

............................ 332

I. I

NTRODUCTION

: I

NTERPOL AND

UBLIC

Interpol is a dubious legal object.

With its 188 members,

it is the second largest international entity after the United Na-

tions. It plays a crucial role in facilitating the cooperation be-

tween national police forces and in supporting the global fight

against transnational crime, terrorism included. Thanks to In-

terpol’s efforts, in some countries it is already possible for a

customs agent or a police patrol to check in real time whether

a passport, a car or a precious canvas has been stolen. Doubt-

less, Interpol is contributing to making our world a safer place

to live.

Despite its growing importance, Interpol is still structured

in many respects as an informal network of national officials.

It is established outside an intergovernmental convention.

Part of its activities are informal and based on non-binding

rules. The fundamental principle is voluntary participation

and cooperation of its members. Judicial review is absent and

political control is, at best, quiescent.

What is the rationale

1. See, e.g., Deirdre Curtin, EU Police Cooperation and Human Rights Protec-

tion: Building the Trellis and Training the Vine, in 2

CRITTI IN ONORE DI

IU-

SEPPE

EDERICO

ANCINI

227, 235 (A. Barav et al. eds., 1998) (labeling In-

terpol an “unidentified” international organization).

2. For an analysis of Interpol’s legal and political accountability, see

UTSEL

ILVESTRE

J. M

ARTHA

EGAL

OUNDATIONS OF

INTERPOL

(2010). See generally

ENTON

RESLER

NTERPOL

(1992); Malcolm Anderson,

Interpol and the Developing System of International Police Cooperation, in

RIME

AND

NFORCEMENT IN THE

LOBAL

ILLAGE

89 (William F. McDonald

ed., 1997);

ALCOLM

NDERSON

OLICING THE

ORLD

: I

NTERPOL AND THE

OLITICS OF

NTERNATIONAL

OLICE

OOPERATION

(1989);

ICHAEL

OONER

NTERPOL

: I

SSUES IN

ORLD

RIME AND

NTERNATIONAL

RIMINAL

USTICE

(1989); Cheah Wui Ling, Mapping Interpol’s Evolution: Functional Expansion

and the Move to Legalization, 4

OLICING

: J. P

’

& P

RAC

28 (2010); James

Sheptycki, The Accountability of Transnational Policing Institutions: The Strange

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 265

behind the “de-formalization” of activities that, when per-

formed domestically, are bound by strict legal requirements

and exercised by command-and-control administration?

The most likely answer points to the governance ethos

that inspires Interpol’s institutional trajectory and police coop-

eration in general. In Europe, for instance, the first experi-

ence of police cooperation goes back to 1975, when an infor-

mal and remote network of national officials—the so-called

Trevi Group—was established at the Community level. It took

almost seventeen years to bring this organizational platform

out of the shadow of informality

and sixteen more years to

subject it to the reach of the rule of law.

As observed, “[l]es

Case of Interpol, 19

. J. L. & S

’

107 (2004); Charles R. Both, Interna-

tional Police Force or Tool for Harassment of Human Rights Defenders and Political

Adversaries: Interpol’s Rift with the Human Rights Community, 8

ILSA J. I

’

OMP

. L.

357 (2001).

3. Police cooperation was institutionalized at the E.U. level in 1992,

when the Maastricht Treaty established the “third pillar,” an area of intergov-

ernmental cooperation which also included border control, visa and immi-

gration control, and judicial cooperation in civil law and criminal law mat-

ters. For an analysis of the early evolution of the third pillar, see

HIRD

ILLAR OF THE

UROPEAN

NION

: C

OOPERATION IN THE

IELDS OF

USTICE AND

OME

FFAIRS

(Joerg Monar & Roger Morgan eds., 1994);

ILEEN

ENZA

NTERGOVERNMENTAL

ILLARS OF THE

UROPEAN

NION

63-84 (2002);

TEVE

EERS

EU J

USTICE AND

OME

FFAIRS

10-20 (Francis G. Jacobs

ed., 2d ed. 2006). For examinations of police cooperation in particular, see

ALCOLM

NDERSON ET AL

., P

OLICING THE

UROPEAN

NION

(2003);

OHN

CCHIPINTI

OLITICS OF

EU P

OLICE

OOPERATION

: T

OWARD A

UROPEAN

FBI? 29-50

(2003).

4. With the entering into force of the Lisbon Treaty on December 1,

2009, the remaining part of the third pillar (already partially “absorbed” into

the Community pillar following the 1997 Amsterdam Treaty) has been abol-

ished; criminal law and police cooperation have become shared compe-

tences of the European Union. Nikolaos Lavranos, The Entering into Force of

the Lisbon Treaty, 13

ASIL I

NSIGHTS

4 (Dec. 14, 2009), http://www.asil.org/

insights091214.cfm; see also Treaty of Lisbon Amending the Treaty on Euro-

pean Union and the Treaty Establishing the European Communities, Dec.

13, 2007, 2007 O.J. (C 306) 1; Treaty of Amsterdam Amending the Treaty on

European Union, the Treaties Establishing the European Communities and

Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1. Thus, E.U. action in

these fields is now bound by the European Charter of Fundamental Rights

and is subject to the scrutiny of the European Court of Justice and to parlia-

mentary oversight. See Consolidated Version of the Treaty on the Function-

ing of the European Union, arts. 67, 70, 85, 88, Sept. 5, 2008, 2008 O.J. (C

115) 47. As a result, the main traditional concerns with the third pillar—

lack of transparency and democratic control, as well as the predominance of

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266 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

policiers, hommes de terrain pragmatiques, recherchent avant tout

l’efficacit

e.”

Law, in this governance perspective, is conceived as instru-

mental: its legitimacy rests on the ability to create or

strengthen effective tools of governance. Therefore, if deci-

sion-makers (in the specific case, almost all the domestic po-

lice forces of the world) agree about the ends to pursue and

the means to employ, then law becomes a secondary concern,

superfluous and perhaps even damaging. Moreover, law is

perceived as rigid, legal requirements as cumbersome, formal-

ism as deleterious to the achievement of shared goals. In

short, when law is not necessary to lead into the purposes of a

certain institution, there is no reason to “legalize” that institu-

tion.

Unsurprisingly, lawyers tend to reject this vision. Global

governance conflates private and public phenomena, formal

and informal rules, national and international institutional set-

tings, making authoritative and non-authoritative powers virtu-

ally undistinguishable.

To recover from such an unhealthy

conflation that threatens the civilizing expansion of the rule of

law beyond the state, legal scholars increasingly plead for the

use of public law at the international level: its lenses, as care-

fully forged by domestic experience, make those dividing lines

the security logic over the protection of rights, see, e.g., Sionaidh Douglas-

Scott, The Rule of Law in the European Union - Putting Security into “The Area of

Freedom, Security and Justice,” 29

. L. R

219, 235 (2004)—are now, in

principle, overcome. See Estella Baker & Christopher Harding, From Past Im-

perfect to Future Perfect? A Longitudinal Study of the Third Pillar, 34

. L. R

(2009).

5. Michel Richardot, Interpol, Europol, 102

OUVOIRS

77, 78 (2002); see

also Nadia Gerspacher, The History of International Police Cooperation: A 150-

Year Evolution in Trends and Approaches, 9

LOBAL

RIME

169, 183 (2008) (af-

firming that “police officers have begun to adopt voluntarily a policy of mu-

tual aid, using whichever mechanism is [most] likely to maximise their suc-

cess”).

6. See Martti Koskenniemi, University of Helsinki Lecture at Universit

Frankfurt am Main: Global Governance and Public International Law (Feb.

9, 2004) (noting that “[a]fter all, international law is just a set of diplomatic

compromises made under dubious circumstances for dubious objectives.

We use it if it leads into valuable purposes. And if it does not lead us into

those purposes—well—then that is all the worse for law”).

7. See, e.g., Martin Shapiro, Administrative Law Unbounded: Reflections on

Government and Governance, 8

. J. G

LOBAL

EGAL

TUD

369, 369-70 (2000).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 267

again visible.

While the governance mindset is skewed to the

idea that the end can justify the means, legal scholars contend

that this output legitimacy “is a weak legitimacy and sometimes

none at all.”

To amend that vision, so the argument runs,

public law can happily perform its traditional limiting function

also on the global stage, by imposing its substantive and proce-

dural standards, thereby checking international unilateral

powers that affect individual liberties. The underlying belief is

that law, and more accurately public law, is the most appropri-

ate way to address normative concerns about the legitimacy of

governance activities.

Assessed against this backdrop, the case of Interpol is par-

ticularly problematic. If good outcomes—the good service In-

terpol renders to global security—legitimate questionable

means only so far, the first question that arises is whether, in

Interpol’s armory, there are any such “questionable means.”

To put it in public law terms: does Interpol exert unilateral

administrative powers that affect individual rights? In the neg-

ative, the quest for legal accountability would be simply mis-

placed. In the positive, that is, if Interpol does exert authorita-

8. For a strong call to redefine and enhance the role of public law at the

international level, see Armin von Bogdandy, Phillip Dann & Matthias Gold-

mann, Developing the Publicness of Public International Law: Towards a Legal

Framework for Global Governance Activities, 9

. L.J.

1375, 1375 (2008) (en-

couraging “scholars of public law to lay open the legal setting of such gov-

ernance activities, to find out how, and by whom, they are controlled, and to

develop legal standards for ensuring that they satisfy contemporary expecta-

tions for legitimacy”); Armin von Bogdandy, General Principles of International

Public Authority: Sketching a Research Field, 9

. L.J.

1909, 1914-15 (2008).

For a skeptical view cautioning against the development of global adminis-

trative law, see Carol Harlow, Global Administrative Law: The Quest for Principles

and Values, 17

. J. I

’

187, 189 (2006). For a restatement of the

global administrative law perspective on the concept of law, see Benedict

Kingsbury, The Concept of ‘Law’ in Global Administrative Law, 20

. J. I

’

23, 27 (2009); Sabino Cassese, Is There a Global Administrative Law?, in

XERCISE OF

UBLIC

UTHORITY BY

NTERNATIONAL

NSTITUTIONS

761 (Armin

von Bogdandy et al. eds., 2010).

9. J.H.H. Weiler, The Geology of International Law – Governance, Democracy

and Legitimacy, 64

EIDELBERG

J. I

’

547, 562 (2004).

10. The tendency of legal scholars to consider as international law any-

thing with an international dimension is emphasized by D.J. Bederman,

What’s Wrong with International Law Scholarship, 1

. J. I

’

75, 76

(2000).

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268 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

tive powers, the protection of citizens’ rights would require the

introduction of legal guarantees.

In the following pages, I argue that this all-or-nothing as-

sumption is counter-productive. This analysis rather starts

from the premise—lying at the roots of the global administra-

tive law (GAL) project—that the governance perspective and

the legal one are not radically at odds with each other. As

GAL studies of international institutional reality confirm,

there is a rich panoply of “hidden” administrative powers to be

checked and a wide variety of techniques by which effective-

ness and the rule of law may be (more easily) reconciled.

Some of those powers and instruments that do not belong in

the comfortable category of “hard” law, being based on non-

binding legal schemes, are hastily ascribed to the minor realm

of “soft” law, which “is not much more than a slightly more

elegant way of saying ‘underconceptualized law.’”

It is a “de-

formalized” twilight zone where consolidated public law con-

cepts are seriously challenged. Most legal scholars prefer to

skip this theoretical quicksand because it adds a further de-

gree of complexity to the debate on the rule of law at interna-

tional level.

My purpose is to show that “soft” powers and correspond-

ing “soft” instruments of accountability should be part of the

ongoing debate on the rule of law in the global arena.

I do

11. This is also one of the basic assumptions underlying the global ad-

ministrative law project. See Benedict Kingsbury, Nico Krisch & Richard B.

Stewart, The Emergence of Global Administrative Law, 68

& C

ONTEMP

ROBS

15, 15-16 (2005); Sabino Cassese, Administrative Law Without the State?

The Challenge of Global Regulation, 37

N.Y.U. J. I

’

L. & P

663, 688

(2005); Stefano Battini, International Organizations and Private Subjects: A

Move Toward a Global Administrative Law? 5 (N.Y.U. Inst. Int’l Law & Justice,

Working Paper No. 2005/3, 2005).

12. Matthias Goldmann, Inside Relative Normativity: From Sources to Stan-

dard Instruments for the Exercise of International Public Authority, 9

. L.J.

1866,

1869 (2008).

13. See Koskenniemi, supra note 6, at 6 (arguing that “deformalization,”

together with the two concurrent developments of fragmentation and Em-

pire, threaten the European idea that the world is progressing towards a rule

of law).

14. On soft law as a global governance tool, see generally Kenneth A.

Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54

’

421 (2000);

OFT

AW IN

OVERNANCE AND

EGULATION

: A

N-

TERDISCIPLINARY

NALYSIS

(Ulrike Morth ed., 2005);

ARD

HOICES

, S

OFT

: V

OLUNTARY

TANDARDS IN

LOBAL

RADE

, E

NVIRONMENT

AND

OCIAL

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 269

this by examining Interpol’s most publicly renowned, and yet

scholarly neglected, power to issue red notices.

In place

since 1946 as an effective instrument of police cooperation,

red notices are published and circulated worldwide through

Interpol’s sophisticated communication network. These “no-

tices” indicate to foreign police organizations that a national

arrest warrant is pending on an individual. From a public law

standpoint, red notices are elusive administrative measures: al-

beit “soft” (non-binding warrants), they de facto impinge upon

the fundamental right to personal freedom insofar as they are

widely enforced by national police forces. Interpol’s power to

issue red notices is, thus, an anomalous administrative power,

effective, yet “soft”, and perhaps effective because “soft.” How

should the law treat such an atypical power? How appropriate

is it to put it under the reach of the rule of law? I contend that

these question can be properly answered only if one is willing

to abandon a positivist stance and to accommodate the func-

tional needs of global governance with the normative con-

OVERNANCE

(John J. Kirton & Michael J. Trebilcock eds., 2004); Jeremy J.

Waldron, The Rule of International Law, 30

ARV

. J.L. & P

. P

’

15, 16

(2006). On the issue of the rule of law in the global arena, see generally

Jeremy J. Waldron, Are Sovereigns Entitled to the Benefit of the International Rule

of Law? 7-9 (N.Y.U. Pub. Law & Legal Theory Working Papers, Paper No.

115, 2009) (rejecting the view that, given the absence of a world government

and the impact of international law on states rather than on individuals, the

rule of law would not be necessary at the international level). For a criticism

of the simplistic assumption—associated with the idea of “immaturity” of in-

ternational law—that global governance and the rule of law necessarily fol-

low diverging paths, see Sabino Cassese,

L DIRITTO GLOBALE

. G

IUSTIZIA E

DEMOCRAZIA OLTRE LO

TATO

31-47 (2009). For other influential contribu-

tions, see Sabino Cassese, The Globalization of Law, 37

N.Y.U. J. I

’

L. &

973, 992-93 (2005); David Dyzenhaus, The Rule of (Administrative) Law in

International Law, 68

& C

ONTEMP

. P

ROBS

127, 166 (2005); Gordon Sil-

verstein, Globalization and the Rule of Law: “A Machine that Runs of Itself?,” 1

’

J. C

ONST

. L.

427 (2003); Martin Shapiro, Globalization of Law, 1

. J.

LOBAL

EGAL

TUD

. 37 (1993).

15. There has been no scientific study of the legal issues raised by In-

terpol red notices; however, partial analyses can be found in Bettina Sch

on-

dorf-Haubold’s article, The Administration of Information in International Ad-

ministrative Law: The Example of Interpol, 9

. L. R

1719 (2008), describ-

ing the legal differences surrounding red notices in different countries, and

Rutsel Silvestre J Martha’s piece, Challenging Acts of INTERPOL in Domestic

Courts, in

HALLENGING

CTS OF

NTERNATIONAL

RGANIZATIONS

EFORE

A-

TIONAL

OURTS

206 (August Reinisch ed., 2010).

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270 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

cerns related to the protection of individual rights, along the

lines suggested by the global administrative law project.

In Part II of the paper, I set the stage. First, I try to ascer-

tain the nature of Interpol—is it an international organization

or a transgovernmental network? (II.A) Then, I try to detect

Interpol’s main functional needs (II.B) and sources of ac-

countability (II.C). In Part III, I address the question whether

Interpol enjoys significant administrative powers. To this end,

I analyze the most relevant instrument of Interpol’s action,

namely “red notices”. Their potential will be illustrated

through the examination of contentious cases. The answer

will be neither black, nor white, but rather grey: I claim, in

fact, that red notices represent a case of “soft” international

administrative measures. The main problem sketched in this

introduction, thus, will still be there: do Interpol’s “soft” in-

struments deserve legal consideration at all? If administrative

powers are not formally binding (“hard”), but only substantially

so (“soft”), is there any real need to make them legally ac-

countable? My answer, developed in Part IV, will be shaped in

a “yes, but” mood. Yes, “soft” administrative powers require le-

gal accountability, but, at the same time, their “softness” should

be taken seriously: it urges equally “soft” mechanisms of ac-

countability. By taking “softness” seriously, global administra-

tive law paves the way for a pragmatic approach to legal ac-

countability: an approach that aims to reconcile the functional

needs vindicated by the governance ethos with the normative

concerns raised by public international law scholars.

II. S

ETTING THE

CENE

: I

NTERPOL

’

ANDATE AND

ECHANISMS FOR

VERSIGHT

A. The Nature of Interpol

In 1923, Heinrich Triepel was defending his dualistic the-

ory of separation between international law and domestic law

in these terms: “Certainly, it is possible that a future evolution

may produce a new international law that recognizes some so-

cial groups within the current states as independent interna-

tional subjects. . . . While we wait, we shall maintain our the-

ory.”

Somewhat ironically, the same year an international

16. Heinrich Triepel, Les rapports entre le droit interne et le droit international,

in 1

ECUEIL DES

OURS

79,

82 (1923).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 271

entity, the International Criminal Police Commission (ICPC),

was established not as an interstate creation, but rather as a

private association under Austrian law. The ICPC resulted

from an agreement between police officers of twenty-two states

(mostly European, with US involvement).

After fifteen years

of Austrian domination, both in terms of funding and man-

power, the ICPC was taken over by the Nazis in 1938, revived

in 1946 by seventeen states under French leadership, and re-

established as the International Criminal Police Organization

or Interpol in 1956. Its headquarters, originally located in Vi-

enna, were moved to Saint-Cloud (near Paris) in 1946 and

then, in 1989, to Lyon.

The legal nature of Interpol has been long debated. Its

statute is contained in the 1956 Constitution, which was

adopted by the Interpol General Assembly and, thus, con-

ceived as an agreement between the heads of national police

forces.

Despite the lack of a formal treaty basis, Interpol—so

the standard account runs—has gradually come “to be recog-

nized as a public international organization” because of “its

17.

ATHIEU

EFLEM

OLICING

ORLD

OCIETY

128 (2002).

18. For information on the European origins of international crime con-

trol, specifically Interpol, see

ETER

NDREAS

& E

THAN

ADELMANN

OLICING

THE

LOBE

: C

RIMINALIZATION AND

RIME

ONTROL IN

NTERNATIONAL

ELA-

TIONS

87-96 (2006); Mathieu Deflem, “Wild Beasts Without Nationality:” The

Uncertain Origins of Interpol, 1989-1910, in

ANDBOOK OF

RANSNATIONAL

RIME

& J

USTICE

275-85 (Philip Reichel ed., 2005).

19. However, Interpol’s view is that its Constitution is an agreement in

simplified form: the decision to become a party to Interpol stems—in con-

formity with Articles 4 and 45 of the Constitution—from a decision by the

appropriate governmental authorities that, in the light of the 1969 Vienna

Convention, commits the state within the international order. This view

draws on the decision of the International Court of Justice in Maritime Delimi-

tation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1994

I.C.J. 112 (July 1), confirming an extremely flexible and broad interpreta-

tion of the notion of international agreement in the Vienna Convention on

the Law of Treaties and asserting that the basic criterion for determining the

will of the states concerned is to determine their intention. On informal

international agreements, see O. Schachter, The Twilight Existence of Non-

Binding International Agreements, 71

. J. I

’

. 296 (1977); Anthony Aust,

The Theory and Practice of Informal International Instruments, 35

’

& C

OMP

L.Q.

787 (1986); Charles Lipson, Why Are Some International Agreements Infor-

mal?, 45

’

495 (1991); see also Andrew T. Guzman, The Design of

International Agreements, 16

. J. I

’

579 (2005) (explaining why some

states choose to make their agreements less formal, and thus less costly to

violate).

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272 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

participation in the U.N. and Council of Europe business, its

mention in a number of international treaties concerning mu-

tual legal assistance, American recognition of it as an interna-

tional organization by Presidential Order in 1983 (which

granted legal immunities in the U.S.), and other, less impor-

tant, legal instruments.”

Accordingly, Interpol enjoys cus-

tomary recognition in international law as an intergovernmen-

tal organization.

In effect, Interpol possesses the typical attributes of an in-

ternational organization. To begin with, it has a permanent

headquarters (since 1984)

and permanent institutions: the

General Assembly, the main decisional body, composed of all

the national delegations;

the Executive Committee, apex of

the executive branch, composed of thirteen delegates that are

elected by the General Assembly with due consideration to ge-

ographical balance; and the Secretariat General, permanent

administrative body implementing the decisions of the Gen-

eral Assembly and the Executive Committee under the respon-

sibility of the Secretary General, whose appointment is pro-

posed by the Executive Committee and approved by the Gen-

eral Assembly. Additionally, Interpol has field offices

20. Anderson, Interpol and the Developing System of International Police Coop-

eration, supra note 2, at 91; see also

NDERSON

OLICING THE

ORLD

supra

note 2, at 71 (explaining that Interpol is formally or tacitly recognized as an

“international inter-governmental organization”);

RESLER

supra note 2, at

131 (“. . .the United Nations according Interpol full legal status as an inter-

governmental international organisation”);

OONER

supra note 2, at 45 (“In-

terpol is now a fully accredited international and inter-governmental organi-

zation.”).

21. Interpol’s legal personality has been confirmed by the International

Labor Organization Administrative Tribunal (ILOAT): “Interpol is an inde-

pendent international organisation; the parties cite no agreement and do

not even mention the existence of any co-ordinating body that would war-

rant comparison. . .” Interpol Judgment 1080 ¶ 12 (Jan. 29, 1991). The

Organization’s international legal personality is also implicit in its accession

in 2000 to the 1986 Vienna Convention on the Law of Treaties between

States and International Organizations or between International Organiza-

tions. Contra Sheptycki, supra note 2, at 117-23 (labeling the claim that In-

terpol is an intergovernmental organization erroneous).

22. In 1984, an ad hoc Headquarters Agreement granted Interpol legal

immunities in France.

RESLER

, supra note 2, at 171.

23. The General Assembly makes its decisions by a simple majority, ex-

cept in cases where a two-thirds majority is required. Interpol Constitution

art. 14.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 273

operating as peripheral arms in every member party, namely

the National Central Bureaus (NCB).

Secondly, Interpol has a permanent staff

whose inde-

pendence is guaranteed by the Constitution.

As in other in-

ternational organizations, Interpol officials have the status of

international civil servants and enjoy international protec-

tion.

Third, despite the dubious existence of a legal duty, each

member country has included in its national budget the finan-

cial contribution of the member responsible for representing

it within the organization.

Thereby, Interpol receives regu-

lar (though not conspicuous) financial support from the mem-

bers, with an annual budget of approximately 50 million eu-

ros.

Lastly, formal state membership should also be acknowl-

edged. Despite the ambiguity of article 4 of Interpol’s Consti-

tution concerning the accession procedure,

membership is

24. Additionally, Interpol has established a representative office at the

United Nations in New York and at the European Union in Brussels and

seven regional offices (four in Africa, two in Central/South America and

one in Asia) to support local NCBs, and few specialized units dealing with

specific transnational crimes that require additional international coordina-

tion, collection of data and tactical and strategic analysis. Interpol, Interpol:

An Overview, at 1, COM/FS/2010-01/GI-01 (2010), available at http://

www.interpol.int/Public/ICPO/FactSheets/GI01.pdf; see also Roraima And-

riani, Interpol: The Front Lines of Global Cooperation,

RIME

& J

UST

. I

’

May-

June 2007, at

8-9.

25. Interpol’s Secretariat General has 450 officials (one-third seconded

from member states) that carry out all the administrative tasks of the organi-

zation.

26. Interpol Constitution art. 30.

27. As defined in the Convention on the Prevention and Punishment of

Crimes Against Internationally Protected Persons art. 1, Dec. 14, 1973, 28

U.S.T. 1975.

28. In Interpol’s view, even if one disregards the fact that each govern-

ment submitted a request for membership and thus expressly consented to

be bound by the Constitution, all the contracting parties have, by their acts

or behavior subsequent to the adoption of the Constitution, consented to its

binding nature as an international legal instrument.

29. In 2010, Interpol’s budget was 48.6 million euros. Interpol: An Over-

view, supra note 24.

30. Article 4 of Interpol’s Constitution states: “Any country may delegate

as a Member to the Organization any official police body whose functions

come within the framework of activities of the Organization.”

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274 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

attached to state governments, rather than to their police ad-

ministrative units.

However, if one looks at the concrete operational dimen-

sion of Interpol, the metaphor of a network organization

seems to capture its essential features much better than the

traditional image of an international organization.

In-

terpol’s decisions, in fact, are taken by national bureaucrats

rather than by diplomats or representatives of government.

National police delegations gather together in the meetings of

Interpol’s main body and discuss the most effective ways to de-

velop their action at the international level. Second, National

Central Bureaus (NCBs) are regulated by their respective do-

mestic law, but act as domestic extensions of Interpol, not of

their government. They implement Interpol’s decisions, col-

lect data that feed Interpol databases and engage in a perma-

nent dialogue with their counterparts and with Interpol’s

31. Two arguments support this conclusion. First, when Interpol’s Gen-

eral Assembly grants formal membership to new countries, its resolutions

expressly attach the status of members to their governments. See, e.g., In-

terpol, Membership of the Government of Samoa, AG-2009-RES-01 (2009). Sec-

ond, member countries are systematically represented at Interpol General

Assembly sessions by delegations, which are led by a head of delegation ap-

pointed by government authorities, in conformity with the procedure set out

in the Rules of Procedure of the General Assembly. Interpol, Rules of Proce-

dure of the ICPO – INTERPOL General Assembly art. 7(1) (Dec. 15, 2004) [here-

inafter Rules of Procedure]. For the view that Interpol is not an intergovern-

mental organization requiring formal state membership, see Richardot,

supra note 5, at 80 (observing that some of the most important member

states still deny Interpol the character of intergovernmental organization,

granting it only the association status of police services); Sheptycki, supra

note 2, at 119 (arguing that Interpol is properly classified as a nongovern-

mental organization).

32. Admittedly, the traditional image of an international organization is

quite misleading. Most international organizations provide a formal frame-

work for the establishment of transgovernmental bodies, often performing

auxiliary tasks, as well for the development of inter-administrative networks.

For an early systematic study of this framework, see Paul Reuter, Les organes

subsidiaires des organisations internationales, in

OMMAGE D

’

UNE G

ERATION DE

JURISTES AU PR

ESIDENT

ASDEVANT

415 (1960). For a more recent attempt,

see Mario Savino, The Role of Transnational Committees in the European and

Global Orders, 6

LOBAL

URIST

DVANCES

no. 3, 2006, art. 5, available at

http://www.bepress.com/gj/advances/vol6/iss3/art5/. For a more general

examination of the actual features of international organizations, see

LVAREZ

NTERNATIONAL

RGANIZATIONS AS

-M

AKERS

184-268 (2005);

Jos

e Alvarez, International Organizations: Then and Now, 100

. J. I

’

324 (2006);

NTERNATIONAL

RGANIZATIONS

(Jan Klabbers ed., 2005).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 275

Headquarters. In that respect, Interpol does not follow the

state-as-a-unit paradigm, but rather the fragmented-state one.

Therefore, it functionally resembles more an administration

“based on collective action by transnational networks of gov-

ernmental officials,” than an “administration by formal inter-

national organizations.”

Formally, Interpol is an interna-

tional organization. Substantially, it follows the transgovern-

mental paradigm.

B. Functional Needs in International Police Cooperation: The

Imperatives of Consent and Neutrality

With the end of the Cold War, the immediate threat of a

military confrontation between superpowers has been re-

moved. Since then, the distinction between internal and ex-

ternal security has progressively lost significance. State secur-

ity, at least in Europe and North America, is not threatened

anymore by military action. It is threatened, rather, by politi-

cal violence arising from complex criminal conspiracies—the

classic domain of domestic policing. Is it still possible to iden-

tify that domain as “internal” security? The negative answer

stems from the very simple fact that criminal activities increas-

33. These are two of the five types of global administrative entities elabo-

rated upon in Kingsbury, supra note 11, at 20-21.

34. This paradigm was first detected and elaborated by Joseph S. Nye, Jr.

& Robert O. Keohane, Transnational Relations and World Politics: An Introduc-

tion, 25

’

329 (1971). See also Robert O. Keohane & Joseph S. Nye,

Jr., Transgovernmental Relations and International Organizations, 27

ORLD

39, 41 (1974);

RANSNATIONAL

ELATIONS AND

ORLD

OLITICS

(Robert O.

Keohane & Joseph S. Nye, Jr. eds., 1970). Since then, two diverging views

have emerged in the debate. Some scholars emphasize the institutional and

functional advantages offered by transgovernmental networks. See, e.g.,

Anne-Marie Slaughter,

A N

ORLD

RDER

171-94 (2004); Kal Raustiala,

The Architecture of International Cooperation: Transgovernmental Networks and the

Future of International Law, 43

. J. I

’

1, 51-70 (2002); Anne-Marie

Slaughter & David Zaring, Networking Goes International: An Update, 2

. L. & S

. S

211 (2006); David Zaring, Transgovernmental Relations, in

NCYCLOPEDIA OF

LOBALIZATION

(Jan-Aart Scholte ed., 2007). Other schol-

ars, by contrast, tend to stress the problems of accountability that “govern-

ment by transgovernmentalism” raises. See, e.g., Philip Alston, The Myopia of

the Handmaidens: International Lawyers and Globalization, 8

. J. I

’

435

(1997); David Kennedy, The Politics of the Invisible College: International Govern-

ance and the Politics of Expertise, 5

. H

. R

. L. R

463 (2001); Sol

Picciotto, Networks in International Economic Integration: Fragmented States and

the Dilemmas of Neo-Liberalism, 17

. J. I

’

L. & B

1014 (1996).

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276 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

ingly stretch themselves beyond state borders and acquire a

global dimension.

This blurring between internal and external security has

altered the dynamics according to which international police

cooperation takes place, in at least two respects.

First, universal police cooperation is not impeded any-

more by the pre-existing Western and Eastern blocs divide.

Rather, it is generally understood as beneficial and, indeed,

necessary to detect the major sources of criminal activities,

which have become transnational. As a consequence, interna-

tional networks of police cooperation have spread, giving sub-

stance to the idea that “dark networks” of criminals need to be

fought with “bright networks” of policemen.

However, national police administrations still retain all

the most relevant law enforcement powers. States are reluc-

tant to share them, police powers being understood as funda-

mental attributes of state sovereignty. When such reluctance

turns into aversion, bilateral cooperation (instead of multilat-

eral) is the preferred, though insufficient, state response.

Therefore, the first imperative is to foster international police

35. On the increasing overlap between internal and external security and

its implications, see Peter Andreas & Richard Price, From War Fighting to

Crime Fighting: Transforming the American National Security State, 3

’

TUD

31 (2001); Didier Bigo, When Two Become One: Internal and External

Securitisations in Europe, in

NTERNATIONAL

ELATIONS

HEORY AND THE

OLIT-

ICS OF

UROPEAN

NTEGRATION

: P

OWER

, S

ECURITY AND

OMMUNITY

171

(Mor-

ten Kelstrup & Michael C. Williams eds., 2000); Derek Lutterbeck, Blurring

the Dividing Line: The Convergence of Internal and External Security in Western

Europe, 14

. S

ECURITY

231 (2005);

ARY

ALDOR

EW AND

ARS

RGANIZED

IOLENCE IN A

LOBAL

(2d ed. 2006).

36. Nadia Gerspacher & Beno

ıt Dupont, The Nodal Structure of Interna-

tional Police Cooperation: An Exploration of Transnational Security Networks, 13

LOBAL

OVERNANCE

347, 361 (2007). Transnational networks have become

a dominant structural feature of police cooperation beyond the state. See

Les Johnston, Transnational Security Governance, in

EMOCRACY

, S

OCIETY AND

THE

OVERNANCE OF

ECURITY

(Jennifer Wood & Beno

ıt Dupont eds.,

2006); Beno

ıt Dupont, Security in the Age of Networks, 14

OLICING

& S

’

76,

(2004); Neil Walker, The Pattern of Transnational Policing, in

ANDBOOK OF

OLICING

111 (Trevor Newburn ed., 2003);

AMES

HEPTYCKI

EARCH OF

RANSNATIONAL

OLICING

: T

OWARDS

SOCIOLOGY OF

LOBAL

OLICING

(2002);

IDIER

IGO

OLICES EN R

ESEAUX

: L’

EXP

ERIENCE EUROPE

ENNE

(1996);

THAN

A. N

ADELMANN

OPS

CROSS

ORDERS

: T

NTERNATIONAL-

IZATION OF

U.S. C

RIMINAL

NFORCEMENT

(1993).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 277

cooperation without eroding national sovereignty, that is, with-

out threatening domestic police autonomy.

Secondly, international cooperation is not limited any-

more to facilitating “low policing” (prevention of “ordinary

crimes”), as was the case in the past.

After September 11,

2001, most cooperative efforts include “high policing,” namely

the prevention of terrorism-related crimes, which are, by defi-

nition, crimes based on political motivations. Interpol is no

exception. Despite its initial commitment not to deal with

“political crimes,” consecrated in article 3 of the 1956 Consti-

tution, Interpol has gradually broadened the scope of its man-

date in order to include terrorism. Its current strict relations

with other international bodies—the U.N. Security Council

and the OCSE Financial Action Task Force (fighting money-

laundering activities related to terrorism), among others—put

Interpol at the center of the global network engaged in the

fight against international terrorism.

This broadening in the scope of police cooperation bears

relevant implications. Not only does it require the develop-

ment of intelligence tasks, and thus the gathering at the supra-

37. For a conceptualization of the tension between national and transna-

tional police action, see Ian Loader & Neil Walker, Locating the Public Interest

in Transnational Policing, in

RAFTING

RANSNATIONAL

OLICING

: P

OLICE

A-

PACITY

-B

UILDING AND

LOBAL

OLICING

EFORM

111 (Andrew Goldsmith &

James Sheptycki eds., 2007).

38. See Jean-Paul Brodeur, High Policing and Low Policing: Remarks About

the Policing of Political Activities, 30

. P

ROBS

507 (1983).

39. On international cooperation for anti-terrorism purposes, see Ved P.

Nanda, Terrorism, International Law and International Organizations, in

AW IN

THE

AR ON

NTERNATIONAL

ERRORISM

(Ved P. Nanda ed., 2005); Barry A.

Feinstein, Combating Terrorism through International Law, in

IGHTING

ERROR-

ISM IN THE

IBERAL

TATE

: A

NTEGRATED

ODEL OF

ESEARCH

, I

NTELLI-

GENCE AND

NTERNATIONAL

48 (Samuel Peleg & Wilhelm Kempf eds.,

2006); Nicole Deller, The Prevention and Prosecution of Terrorist Acts: A Survey of

Multilateral Instruments, in

MPERIAL

RESIDENCY AND THE

ONSEQUENCES

9/11: L

AWYERS

EACT TO THE

LOBAL

AR ON

ERRORISM

414 (James R.

Silkenat & Mark R. Shulman eds., vol. 2, 2007);

ERRORISM AS A

HALLENGE

FOR

ATIONAL AND

NTERNATIONAL

: S

ECURITY

ERSUS

IBERTY

787-1194

(Christian Walter et al. eds., 2004);

NFORCING

NTERNATIONAL

ORMS

GAINST

ERRORISM

(Andrea Bianchi ed., 2004);

LOBAL

NTI

-T

ERRORISM

AW AND

OLICY

(Victor V. Ramraj et al. eds., 2005);

EPTEMBER

11, 2001: A

URNING

OINT IN

NTERNATIONAL AND

OMESTIC

617-824 (Paul Eden &

ese O’Donnell eds., 2005);

NTERNATIONAL

RIMINAL

, V

. II: M

UL-

TILATERAL AND

ILATERAL

NFORCEMENT

ECHANISMS

695-852

(Mahmoud

Cherif Bassiouni ed., 2008).

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278 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

national level of sensitive data (on political affiliation, religion,

race, membership to suspect groups) that call for the protec-

tion of individual rights.

It also implies a reconfiguration of

international police cooperation as a politically salient activity

for dealing with “political crimes.” In a context crossed by

deep geopolitical tensions

and by divergent understandings

of terrorist phenomena,

such a reconfiguration may easily

induce state resistance and erode the basis for international

cooperation. The second imperative of international police

cooperation is, therefore, “de-politicization.”

Interpol’s ability to enforce this imperative has been the

main source of its success. Because of its neutrality, con-

secrated in the Constitution,

almost all countries of the

world—both Western and Eastern, liberal and communist, Is-

lamic and non-Islamic—despite their profound political divi-

sions, are willing to cooperate on police matters on the as-

sumption that Interpol’s ends are not politically biased but

(merely) functionally oriented. This assumption is now under

40. For examples of the handling of these issues in the European con-

text, see generally Francesca Bignami, Privacy and Law Enforcement in the Euro-

pean Union: The Data Retention Directive, 8

. J. I

’

233 (2007); Rocco

Bellanova, The “Pr

um Process”: The Way forward for EU Police Cooperation and

Data Exchange, in

ECURITY

ERSUS

USTICE

?: P

OLICE AND

UDICIAL

OOPERA-

TION IN THE

UROPEAN

NION

203 (Elspeth Guild & Florian Geyer eds.,

2008); Michele Nino, The Protection of Personal Data in the Fight Against Terror-

ism: New Perspectives of PNR European Union Instruments in the Light of the Treaty

of Lisbon, 6

TRECHT

L. R

62 (2010). For a broader comparative analysis,

see generally

TEPHAN

OTTIAUX

ERRORISM AND

IMITATION OF

IGHTS

: T

ECHR

AND THE

US C

ONSTITUTION

(2008).

41. One does not need to subscribe to the “clash of civilizations” thesis to

make such a general statement. The obvious reference is to Samuel P. Hunt-

ington, The Clash of Civilizations, 6

OREIGN

29 (1993).

42. As the lack of an internationally accepted definition of “terrorism”

shows. On the issue, see Mahmoud Cherif Bassiouni, Legal Control of Interna-

tional Terrorism: A Policy-Oriented Assessment, 43

ARV

. I

’

L.J.

83, 84-88

(2002);

AUL

EFINING TERRORISM IN INTERNATIONAL LAW

(2006).

43. See Mathieu Deflem & Lindsay C. Maybin, Interpol and the Policing of

International Terrorism: Developments and Dynamics Since September 11, in

ER-

RORISM

: R

ESEARCH

, R

EADINGS

, & R

EALITIES

175 (Lynne L. Snowden & Brad-

ley C. Whitsel eds., 2005); Michael Barnett & Liv Coleman, Designing Police:

Interpol and the Study of Change in International Organizations, 49

’

TUD

. Q.

593, 598-99 (2005).

44. According to Article 3 of the Interpol Constitution, “[i]t is strictly

forbidden for the Organization to undertake any intervention or activities of

a political, military, religious or racial character.”

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 279

threat because of the inclusion of terrorism-related crimes in

Interpol’s mandate.

A telling anecdote is in order. After the Israeli offensive

launched on the Gaza Strip between December 2008 and Janu-

ary 2009, rumors began to circulate that Iran had requested

Interpol to issue a red notice (i.e. an arrest warrant) against

fifteen Israeli officials, including outgoing Israeli prime minis-

ter Ehud Olmert, defense minister Ehud Barak, and foreign

minister Tzipi Livni for crimes committed during Tel Aviv’s

Operation Cast Lead in Gaza. In early March 2009, Interpol

rejected the claim, asserting that Tehran had not sought the

issuance of any red notices and that, in any event, “Interpol’s

Constitution strictly prohibits the Organization from making

‘any intervention or activities of a political, military, religious

or racial character.’”

Yet, news agencies reported Tehran’s

chief prosecutor announcing that the Iranian judiciary system

had plans to request Interpol red notices for over 100 Israeli

officials involved in the war on Gaza. Few days later Interpol

admitted that it was reviewing an Iranian request to issue

twenty-five red notices against Israeli officials.

Eventually,

45. Press release, Interpol, Interpol issues denial of reported Iranian re-

quest seeking arrest of 15 senior Israeli officials

(

Mar. 2, 2009), available at

http://www.interpol.int/Public/News/news2010.asp.

46. Some embarrassment emerges from a March 10, 2009 Interpol press

release:

While Interpol would not ordinarily comment on member country

requests for the issue of Red Notices, as Iranian government offi-

cials have made their request public and provided information to

the media, the General Secretariat has released the following state-

ment: ’The Interpol General Secretariat headquarters in Lyon,

France, on Saturday 7 March received a message from Iranian au-

thorities requesting the issue of 25 Red Notices for senior Israeli

officials in relation to the Gaza offensive in December and January.

In accordance with the Organization’s rules and regulations this

request is now being studied by Interpol’s Office of Legal Affairs in

order to determine whether it conforms with the Constitution and

specifically Article 3 which strictly prohibits the Organization from

making ‘any intervention or activities of a political, military, relig-

ious or racial character.’ Until this thorough review is complete, it

would be inappropriate for the General Secretariat to comment

further.

Press Release, Interpol, Interpol statement on Iranian request for issue of

Red Notices

(

Mar. 10, 2009), available at http://www.interpol.int/Public/

News/news2009.asp.

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280 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

none of the red notices requested by Iran were upheld, argua-

bly because the Interpol office of legal affairs deemed the re-

quest incompatible with article 3 of Interpol’s Constitution,

which prohibits the organization from making “any interven-

tion or activities of a political, military, religious or racial char-

acter.” Interpol was silent on the matter.

As this episode makes clear, in the case of Interpol the

imperative of neutrality is both illusory and cogent. It is illu-

sory because terrorism and related crimes are by definition po-

litical. Yet, it is more cogent than ever because, amid the

“clash of civilizations,” neutrality is the only available passepar-

tout for a truly global police cooperation. In short, Interpol

cannot be really apolitical, because no institution can be. In-

terpol can only mask its ideology. And, in the era of the fight

against international terrorism, it has to.

C. Normative Concerns About Interpol’s Accountability: Neither

“Transmission Belt” Nor “Interest Representation”

Before analyzing Interpol’s administrative powers and le-

gal accountability,

it seems appropriate to put Interpol in

context and address the more general question, “to whom is

this global administration accountable?” The question can be

addressed in many different ways, depending on the concep-

tual and methodological standpoint one adopts.

In a GAL perspective, both top-down and bottom-up

mechanisms of accountability assume relevance. The former

are established at the international level, either “inside” the

relevant global institution or “outside,” by subjecting it to the

supervision of other bodies. The latter, by contrast, are institu-

tionalized at the state level, mainly (albeit not exclusively) via

47. See infra Parts III, IV.

48. In this part of the paper, I borrow the conceptual framework from

Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in

World Politics, 99

. P

. S

. R

29 (2005). Accordingly, accountability

“implies that some actors have the right to hold other actors to a set of stan-

dards, to judge whether they have fulfilled their responsibilities in light of

these standards, and to impose sanctions if they determine that these re-

sponsibilities have not been met,” while the concept of legitimacy refers to the

set of standards according to which the power-wielder can be judged and

subject to sanction. Id. at 29-30.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 281

domestic courts.

Here, I start from the simplified assump-

tion that administrative accountability mainly (albeit not ex-

clusively) rests on two basic mechanisms, namely “transmission

belt,” or control from the political branch of the executive,

and “interest representation,” or control by those who are reg-

ulated.

The roots of these mechanisms can be traced back,

respectively, to the “delegation” model of accountability and

to the “participation” one.

The classic rule, rooted in the dualist state-centric para-

digm, is that international organizations have the authority to

act in the international arena if and because states explicitly

confer the required authority on them. This rule is instrumen-

tal to accountability: the act of delegation, being formal, pre-

supposes both a decision of the government and parliamen-

tary scrutiny. In turn, domestic governments and parliaments,

as “principals,” are entitled to enact various forms of political

control in order to check the power conferred on the interna-

tional “agent” and to prevent its abuse.

In the case of Interpol, this “delegation” model of ac-

countability seems not to be properly in place. Absent an ex-

plicit act of delegation (a formal treaty), there is no formal

principal. Delegation is, at best, implicit. This situation weak-

ens the typical form of accountability on the international

stage: the domestic “transmission belt” is formally discon-

nected and substantially stretched. Governments may only ex-

49. See Kingsbury et al., supra note 11, at 31-35 (distinguishing two basic

sources of accountability of global administration, via domestic institutions

and via internal mechanisms of control and participation); Richard B. Stew-

art, U.S. Administrative Law: A Model for Global Administrative Law?, 68

ONTEMP

. P

ROBS

63 (2005) (providing a rich illustration of accountability

mechanisms, grouped by “top down” and “bottom up” approaches to global

administrative law); Nico Krisch, The Pluralism of Global Administrative Law, 17

. J. I

’

247, 253-56 (2006) (claiming that national, international and

cosmopolitan groups all contribute, as constituencies of global regulatory

governance, to make international administrations accountable).

50. Richard B. Stewart, The Reformation of American Administrative Law, 88

ARV

. L.R

1669, 1675, 1723 (1975).

51. See Grant & Keohane, supra note 48, at 30-33 (describing these two

models of accountability).

52. See generally Kenneth Abbott & Duncan Snidal, Why States Act Through

Formal International Organizations, 42

J. C

ONFLICT

ESOL

3, 5 (1998) (discuss-

ing the constraints states place on the independence of international organi-

zations).

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282 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

ert indirect control on the international organization by

means of their national delegations. Delegates (should) re-

ceive instructions from the capital before participating in the

relevant international meeting and afterwards (should) report

back to the government.

The case of Interpol is even more complex. At the do-

mestic level, the usual substitute for (or complement to) the

“transmission belt” is the “interest representation” model. It is

based on the idea of participation as a suitable accountability

mechanism for independent administrations. Accordingly,

the performance of the power-wielder is evaluated—absent its

“principals”—by those who are affected by its actions. This so-

lution has been consistently experienced in the domestic are-

nas with regard to independent regulatory agencies, which are

typically removed from the direct control of the government.

The same solution may prove to be apt for those international

bodies that, like Interpol, operate as autonomous transgovern-

mental networks. Indeed, the transparency and notice and

comment mechanisms have been adopted by many global ad-

ministrations and these are increasingly advocated as the most

appropriate tools to compensate for the lack of political con-

trol over international regulatory networks.

Can’t we recom-

mend the same solution for the case of Interpol?

53. The accountability problem posed by transgovernmental bodies was

first detected in the 1970s by Karl Kaiser. See, e.g., Karl Kaiser, Transnational

Relations as a Threat to the Democratic Process, 25

’

RGS

706 (1971). Since

then, scholars have devoted much attention to the issue. In addition to the

literature already mentioned supra note 34, see Anne-Marie Slaughter, Agen-

cies on the Loose? Holding Government Networks Accountable, in

RANSATLANTIC

EGULATORY

OPERATION

: L

EGAL

ROBLEMS AND

OLITICAL

ROSPECTS

521

(George A. Bermann et al. eds., 2000). For a recent critical appraisal, see

Pierre-Hugues Verdier, Transnational Regulatory Networks and Their Limits, 34

ALE

J. I

’

113 (2009).

54. See Stewart, supra note 50, at 1671-88 (discussing this lack of direct

control over agencies).

55. See Cassese, supra note 8, at 775 (observing that “as there are no peri-

odic elections at the global level, procedural accountability plays a dominant

role in making global bodies responsible to global society”); see also Richard

B. Stewart, The Global Regulatory Challenge to U.S. Administrative Law, 37

N.Y.U.

J. I

’

L. & P

695, 717-22 (2005) (discussing application of U.S adminis-

trative law to domestic implementation of global regulatory norms); Daniel

C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative

Law, 115

ALE

L.J. 1490, 1527 (2006) (discussing notice and comment in the

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 283

Unfortunately, we cannot. Here lies the specificity of the

case. The main obstacle is represented by the kind of func-

tions carried out by Interpol. First, Interpol is responsible for

the publication and circulation of different types of notices,

concerning arrest warrants of suspected criminals, requests to

freeze suspected terrorists’ assets, exchanges of police infor-

mation, warnings about criminal activities and imminent

threats to public safety, locations of stolen goods and missing

persons, and identifications of dead bodies. The circulation is

restricted to the competent national police units, for evident

security reasons.

Second, Interpol collects data concerning

the names of suspected criminals, fingerprints and DNA

profiles, stolen and lost travel documents, and stolen goods

(vehicles and works of art). This data is placed in ad hoc opera-

tional databases, which are accessible only—and again under-

standably so—to national police forces. Remaining activities

(operational support during crisis, training et cetera) are ma-

terial in character and thus less relevant in this context. It can

be added that Interpol is timidly developing some intelligence

capacity, so far limited to the analysis of global crime trends

and, more specifically, to the use of the internet by terrorists,

crimes against children and intellectual property crimes. For

practical reasons, all these functions do not leave relevant mar-

gins for public participation or disclosure. Most mechanisms

of interest representation would be meaningless (notice and

comment, for instance, would be misplaced) or even counter-

context of an administrative law procedure advancing supranational good

governance).

56. According to the Rules on the Processing of Information for the Pur-

poses of International Police Co-Operation, national and international enti-

ties other than the National Central Bureaus may consult or provide infor-

mation via Interpol’s channels only if they are expressly authorized to do so

and if the information is essentially for international police co-operation

purposes. Interpol, Rules on the Processing of Information for the Purposes of Inter-

national Police Co-Operation, art. 1(f)-(g), AG-2003-RES-04 (entered into force

Jan. 1, 2004), available at, http://www.interpol.int/public/icpo/legalmateri-

als/constitution/info/default.asp [hereinafter Processing Rules]; see also In-

terpol, Implementing Rules for the Rules on the Processing of Information for the

Purposes of International Police Co-Operation, ch. 3, AG-2007-RES-09 (entered into

force Jan. 1, 2008), available at http://www.interpol.int/Public/ICPO/LegalMateri-

als/constitution/rulesRPI/rulesRPI09.pdf [hereinafter Implementing Rules].

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284 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

productive (transparency would be damaging if understood as

public disclosure of sensitive data).

Due to the intrinsic opacity of most security activities, do-

mestic agencies performing similar tasks are, in principle,

tightly controlled by the government that, in turn, bears the

political responsibility for their action before the parliament.

The “transmission belt,” therefore, is the prevailing (if not ex-

clusive) model adopted in the field: reliance on “top down”

checks is the rule in the domestic setting.

By contrast, as we

have seen, international police cooperation enjoys a high level

of autonomy and at least partially escapes such checks.

Neither top-down nor bottom-up mechanisms of control are in

place. From a GAL perspective, this creates a typical accounta-

bility gap that needs to be filled.

There is, however, a rationale behind this tendency. Spe-

cialists argue that, by building relations with their foreign

counterparts, domestic police agencies expand their knowl-

edge of transnational crimes and successfully increase their au-

tonomy from political oversight. Such a partial detachment

from their respective governments, in turn, facilitates the “de-

politicization” of international police cooperation, thereby ex-

panding its reach. International police cooperation is, thus,

crucially dependent on the ability of police agencies to gain a

position of relative independence from governments.

And

57. Interpol’s General Secretariat has, accordingly, the duty to “grant ac-

cess to an item of information or to a database solely to those persons whose

functions or duties are connected with the purpose for which the said infor-

mation is processed,” to “protect the information it processes from any un-

authorized or accidental form of processing such as alteration (modifica-

tion, deletion or loss) or unauthorized access and use of that information,”

and to “check and ensure that only those persons authorized to access the

information had done so.” Processing Rules, supra note 56, art. 23.

58. For discussions of police accountability, see generally David H. Bay-

ley,

ATTERNS OF

OLICING

: A C

OMPARATIVE

NTERNATIONAL

NALYSIS

(1990);

Barry Loveday, Government and Accountability of the Police, in

OLICING

CROSS

THE

ORLD

: I

SSUES FOR THE

WENTY

FIRST

ENTURY

132 (Rob I. Mawby ed.,

1999); J

OHN

D. B

REWER ET AL

OLICE

, P

UBLIC

RDER AND THE

TATE

(1996); J

AMES

ECKMAN

OMPARATIVE

EGAL

PPROACHES TO

OMELAND

E-

CURITY AND

NTI

-T

ERRORISM

(2007).

59. See, e.g., Kingsbury et al., supra note 11, at 31-35.

60. For this view, see Deflem, supra note

; Mathieu Deflem,

Bureaucratisation and Social Control: Historical Foundations of International Police

Cooperation, 34

AW AND

’

739, 745 (2000).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 285

this reintroduces in the discourse the functional imperatives of

consent and neutrality that we have already acknowledged.

As a result, a self-sustaining dynamic, based on the cardi-

nal principles of members’ consent and political neutrality,

buttresses Interpol’s action. Consent and neutrality, rather

than delegation and participation, are the main sources of In-

terpol’s legitimacy. There is no sign, yet, of accountability,

other than that provided by the consent of national adminis-

trative sub-units “on the loose.”

III. I

NTERPOL AND

“S

OFT

” A

DMINISTRATIVE

OWERS

It is a commonly held view that the legitimacy stemming

from state consent reaches its limits when an international (ad-

ministrative) measure affects individual rights.

Are those

limits reached in the case of Interpol?

Among the few scholars that have dealt with the question,

the standard answer is negative. Interpol is not entrusted with

any significant investigative or operational powers. Those

powers are still located at the national level. Interpol cannot

adopt the typical police measures—arrest, for instance—that

most directly impinge upon personal freedoms. Its core busi-

ness is the administration of information. Thanks to its sophis-

ticated communication network (the I 24/7 Communication

System), Interpol is able to circulate crime-related information

and notices worldwide in real time. Interpol, thus, seems to

have “no transnational or international powers with regard to

the individual.”

In this section, I contend that this conclusion is not accu-

rate. My purpose is to show that the legal issues related to

Interpol’s administrative powers go beyond the problems of

privacy and data protection to which public law disciples are

61. Supra Part II.B.

62. Slaughter, supra note 53.

63. E.g. August Reinisch, Securing the Accountability of International Organi-

zations, 7

LOBAL

OVERNANCE

131 (2001); Dan Sarooshi,

NTERNATIONAL

RGANIZATIONS AND

HEIR

XERCISE OF

OVEREIGN

OWERS

(2005); Allen

Buchanan & Robert O. Keohane, The Legitimacy of Global Governance Institu-

tions, 20

THICS

& I

’

405 (2006).

64. Sch

ondorf-Haubold, supra note 15, at 1742.

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286 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

more accustomed.

In particular, I will focus on the

problems of legal accountability raised by Interpol red notices.

The issuing of such notices “to seek the location and ar-

rest of a person with a view to his/her extradition”

presup-

poses the establishment of ad hoc databases and, thus, also in-

terferes with the individual right to privacy and informational

self-determination.

Not surprisingly, Interpol’s secondary

rules on the processing of police information

and on the

control of personal data,

discipline the issuing of notifica-

tions within the context of data protection. Nonetheless, in

this part my claim is (a) that red notices raise problems of le-

gal (and political) accountability that go beyond the privacy

issue, and (b) that such problems can be captured only if one is

willing to abandon a positivist stance and to accept that “soft”

international administrative acts enjoy legal significance.

A. Red Notices: Basic Features

Red notices, or international wanted persons’ notices,

concern persons that are wanted by national jurisdictions or by

international organizations, such as international criminal

tribunals, with which Interpol has special agreements. In

65. For a thorough analysis, see id. at 1736-39, 1745-47; see also Bart De

Schutter, Police Information Exchange and Privacy Protection: A European Perspec-

tive, in

TRATEGIES OF THE

AND THE

OMBATING

RANSNATIONAL

RGANIZED

RIME

79 (Brice De Ruyver, Gert Vermeulen & Tom Vander

Beken eds., 2002) (comparing Interpol’s rules of data protection to those of

Schengen and Europol);

TEPHEN

ABERA

ARANJA

RANSPARENCY AND

RO-

PORTIONALITY IN THE

CHENGEN

NFORMATION

YSTEM AND

ORDER

ONTROL

OPERATION

(2008) (examining data protection in the Schengen Informa-

tion System).

66. Implementing Rules, supra note 56, art. 37(a)(1)(i).

67. Sch

ondorf-Haubold, supra note 15, at 1741.

68. The rules on the processing of police information—all available at

http://www.interpol.int/Public/icpo/LegalMaterials/constitution/de-

fault.asp—are divided in three subsets: (a) the Processing Rules, supra note

56; (b) the Implementing Rules, supra note 56; (c) the Rules governing ac-

cess by an intergovernmental organization to the Interpol telecommunica-

tions network and databases, AG-2001-RES-08 (entered into force Sept. 28,

2001).

69. The control of personal data is disciplined by the Rules on the Con-

trol of Information and Access to Interpol’s Files, AG-2004-RES-08 (entered

into force Jan. 1, 2005) [hereinafter Control Rules] and the Rules on Interna-

tional Police Co-operation and on the Internal Control of Interpol’s

Archives, AGN/51/RES1 (entered into force Feb. 14, 1982).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 287

2009, the General Secretariat of Interpol issued 5,020 red no-

tices, marking an increase of 61 percent in one year.

These

notices are characterized by three main features, concerning

(i) the nature, (ii) the conditions and (iii) the effects.

(i) In order to detect the nature of a red notice, it seems

appropriate to distinguish the arrest warrant from the notice

itself, understood as the communication element of a complex

administrative act. The source of the warrant is national: more

specifically a domestic judicial authority. The source of the

notice is, instead, Interpol: it is up to the Secretariat General,

with the assistance of the competent National Central Bureau

(functionally dependent on Interpol), to authorize the na-

tional request to publish the warrant on Interpol’s ad hoc

database and to circulate it on Interpol’s communication sys-

tem. Therefore, it is true—as other scholars state—that a red

notice formally is not an international arrest warrant. None-

theless, it is an international administrative act: namely, an act

of authorization (to publish and circulate a national arrest

warrant) issued by Interpol.

(ii) Interpol authorizes the publication and circulation of

the act if three conditions are met: (a) that the person sought

is the subject of criminal proceedings or has been convicted of

a crime; (b) that sufficient information is provided to allow for

the cooperation requested to be effective; (c) that assurances

have been given that extradition will be sought upon arrest of

the person, in conformity with national laws and/or the appli-

cable bilateral and multilateral treaties.

In practice, In-

terpol’s Secretariat General deems the first two conditions ful-

70. Interpol, Annual Report 2009, at 33 (2010), available at http://

www.interpol.int/Public/ICPO/InterpolAtWork/iaw2009.pdf; Interpol, No-

tices, at 2, COM/FS/2010-01/GI-02 (2010), available at http://www.interpol.

int/Public/ICPO/FactSheets/GI02.pdf. In 2008, 3,126 red notices were

adopted. Annual Report 2009, supra, at 33.

71. Article 10 (5) of the Processing Rules, supra note 56, makes it clear

that the author of all the notices is the General Secretariat: “Notices shall be

published by the General Secretariat either at its own initiative or at the

request of a National Central Bureau, authorized national institution or au-

thorized international entity.”

72. The three conditions are listed in article 37(1)(a)(ii) of Implement-

ing Rules, supra note 56. See also id. art. 38(b) (“The General Secretariat may

only publish a notice once it has verified that the processing required con-

forms to the rules in force and once the National Central Bureau, author-

ized national institution or authorized international entity which requested

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288 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

filled if the national arrest warrant, on one hand, contains suf-

ficient information related to the identity of the suspected

criminal (physical description, photograph, fingerprints, occu-

pation, languages spoken, identity document numbers) and if,

on the other, it provides references to “an enforceable arrest

warrant, court decision or other judicial documents,”

to-

gether with indication of the nature of the charge and the

maximum penalty applicable. While the first condition re-

sponds to functional needs (identity details are necessary to

facilitate local police searches), the second condition pertains

to the sphere of legal guarantees: the judicial source of the

warrant stands as a presumption that the national request

complies with the rule of law and that it is not a discretionary

act of the executive.

In the latter respect, the main problem of legal accounta-

bility concerns the newly created “Interpol-U.N. Security Spe-

cial Notice.” This type of notice, introduced in 2005, in re-

sponse to U.N. Security Council Resolution 1617, specifically

concerns individuals and entities that are the targets of U.N.

sanctions against Al Qaeda and the Taliban. The aim is to sup-

port the implementation of the U.N. 1267 Committee deci-

sions regarding the freezing of assets of suspected terrorists.

The problem this new instrument raises is distinctive.

Red notices are based either on an arrest warrant (issued for a

person wanted for prosecution) or on a court decision (for a

person wanted to serve a sentence): either way the judiciary is

involved. By contrast, the issuing of an Interpol-U.N. Security

Special Notice does not presuppose any judicial involvement.

The legitimacy effect stemming from Interpol’s implicit ap-

proval is particularly problematic, insofar as it grants world-

wide spread to a very restrictive international administrative

decision that has been adopted according to a diplomatic pro-

cedure, outside any judicial control and, more generally,

outside the reach of the rule of law.

The fact that these mea-

its publication, has communicated to it all the required sets of informa-

tion.”).

73. Id. art. 37(1)(a)(ii).

74. See Joined Cases C-402/05 P & C-415/05 P, Kadi v. Council (Kadi I),

2008 E.C.R. I-6351 (concerning EU measures imposed on Yassin Abdullah

Kadi, a Saudi Arabian citizen suspected of being associated with Al-Qaeda

and the Taliban, including restrictive measures consisting of “freezing” his

assets). In the judgment, the ECJ annulled the European regulation on the

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 289

sures are relatively rare

does not detract from the relevance

of the problem, which accentuates the accountability gap con-

cerning Interpol’s notices in general.

(iii) As for the legal effects, if assurance has to be given

“that extradition will be sought upon arrest of the person” (see

the above-mentioned third condition for the issuance of red

notices), it is evident that a red notice does not amount to a

request of extradition.

The same provision also makes clear,

though, that a relation between the notice and the request of

extradition does exist: once encapsulated in a notice, the na-

tional arrest warrant explicitly becomes instrumental to extra-

dition. In fact, Interpol internal rules construe a red notice as

the final act of a pre-extradition procedure: it corresponds to a

request of provisional arrest with a view to extradition, an act

that is usually disciplined in bilateral and multilateral treaties

on extradition.

ground that it implemented a U.N. decision adopted in violation of the

rights of defense and the right to an effective judicial remedy of the con-

cerned person. See also T-85/09, Kadi v. Comm’n (Kadi II), 2010 EUR-Lex

LEXIS 825 (Sept. 30, 2010). The topic is also discussed infra in Part IV.B.1,

in the context of the U.N. decision-making process leading to the adoption

of fund-freezing measures against suspected terrorists.

75. Interpol issued 17 Interpol-U.N. notices in 2008 and 26 in 2009,

against 3,126 red notices in 2008 and 5,020 in 2009. Annual Report 2009,

supra note 70, at 33.

76. According to the common understanding, “[e]xtradition is the pro-

cess by which States seek the returns of fugitives, that is the surrender of

persons either accused or convicted of crimes, to the States where those

crimes were allegedly committed.”

RVINDER

AMBEI

& J

OHN

R.W.D. J

ONES

XTRADITION

ANDBOOK

1 (2005). On the principle of territorial juris-

diction, upon which the regime of extradition is built, see

NTONIO

ASSESE

& M

IREILLE

ELMAS

-M

ARTY

URISDICTIONS NATIONALES ET CRIMES INTERNA-

TIONAUX

(2002).

77. Christopher Pyle observes that the “provisional arrest” (i.e. arrest

before documents establishing probable cause can be supplied), as en-

shrined in various international agreements, is a practice that “dates from

the age of the sail, when it took weeks or months for slow-moving mails and

slow-traveling witnesses to catch up with telegraphed detention requests,”

and yet “it remains common practice in the age of fax machines and high-

speed air travel.”

HRISTOPHER

H. P

YLE

XTRADITION

, P

OLITICS

AND

UMAN

IGHTS

308 (2001). The consequence is that, for instance, in the United

States, if the foreign policy interest is deemed to be strong, the Fourth

Amendment to the Constitution does not fully apply: the relevant judge, in

fact, does not perform the usual scrutiny of allegations and supporting evi-

dence before the person is subject to a planned arrest. Id. More accurately,

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290 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

Moreover, it is true that red notices are not legally bind-

ing and that, accordingly, domestic authorities are free not to

honor them. For this reason, scholars assert that red notices

“cannot be considered as administrative decisions on individ-

ual cases with transnational effect in the sense of an ‘interna-

tional administrative act.’”

Yet, it is also true that, as Interpol

itself recognizes, “many of Interpol’s member countries, how-

ever, consider a Red Notice a valid request for provisional ar-

rest.”

While the non-binding nature of the notice would al-

low the recipient country to disregard it, the practice—with

few exceptions (the U.S. being the most prominent one)

—is

Pyle also notes that under 18 U.S.C. § 3184, to get a person arrested in the

United States, the foreign country is (only) requested to provide

a sworn complaint declaring that the accused is wanted for an ex-

traditable offense, a statement that an arrest warrant exists, a few

facts, a physical description of the accused, and a promise to make

a fully documented, formal request later. This is sufficient to put

the accused behind bars for between thirty days and three months,

depending on the treaty, while the paperwork is being processed.

Prehearing incarcerations of seven to eight months are not uncom-

mon.

Id. at 415 n.74.

78. Sch

ondorf-Haubold, supra note 15, at 1740.

79. Press Release,

NTERPOL

, I

NTERPOL

ENERAL

SSEMBLY UPHOLDS

XEC-

UTIVE

OMMITTEE DECISION ON

AMIA R

OTICE DISPUTE

. 7, 2007),

available at http://www.interpol.int/Public/ICPO/PressReleases/PR2007/

PR200754.asp.

80. Even though 18 U.S.C. § 3184 disciplines the conditions for issuing a

warrant for the apprehension of fugitives from foreign countries without ex-

plicitly mentioning Interpol’s red notices, according to the U.S. Department

of Justice:

[N]ational law prohibits the arrest of the subject of a Red Notice

issued by another INTERPOL member country, based upon the no-

tice alone. If the subject for a Red Notice is found within the

United States, the Criminal Division will make a determination if a

valid extradition treaty exists between the United States and the

requesting country for the specified crime or crimes. If the subject

can be extradited, and after a diplomatic request for provisional

arrest is received from the requesting country, the facts are commu-

nicated to the U.S. Attorney’s Office with jurisdiction which will file

a complaint and obtain an arrest warrant requesting extradition.

U.S. D

’

TOF

USTICE

, U

NITED

TATES

TTORNEYS

’ M

ANUAL

tit. 1 § 3 (1997),

available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/

title1/doj00003.htm.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 291

the opposite: many member states tend to honor the notice.

If they can, they apprehend the fugitives appearing on In-

terpol’s web page and proceed to arrest. When that is the

case, the notice itself results in a threat to personal liberty, as

the case below shows.

B. The Kazakh Case (I): The Impact on Personal Freedom

In early summer 1999, Interpol issued a red notice for the

arrest of Mr. Kazhegeldin, by then former prime minister of

Kazakhstan and leading opposition figure of the repressive

Nazarbayev regime. The request against Mr. Kazhegeldin had

been advanced by the Kazakh National Bureau on the basis of

allegations of tax evasion, money laundering, abuse of office

and illegal ownership of property outside the country (in

Belgium). As a consequence, while travelling to Russia for a

meeting of the Republican Peoples Party of Kazakhstan, the

opposition political party, Mr. Kazhegeldin was arrested by the

Russian police and detained on the basis of a red notice issued

by Interpol on Kazakh request. Yet, the general prosecutor of

Kazakhstan was unable to substantiate the charges. Thus, the

Russian general prosecutor ordered the release after conclud-

ing that the allegations were unfounded.

Two points need to be noticed: first, the Interpol-spon-

sored warrant was subject to judicial review in the recipient

state; second, this “safety net” scrutiny is important, but not

sufficient to insure the integrity of individual rights. Given the

ex post nature of this safeguard, in fact, Mr. Kazhegeldin “was

prevented from meeting with his political supporters and from

exercising rights guaranteed to him under the United Nations

Universal Declaration on Human Rights.”

81. See Interpol, Report No. 13 to the General Assembly: Enhancing the Interna-

tional Status of Red Notices, at 1, AG-2009-RAP-13 (July 29, 2009), available at

http://www.coe.int/t/e/legal_affairs/legal_co-operation/transnational_

criminal_justice/2_PC-OC/agn78r13.pdf (explaining the asymmetries aris-

ing from the uncertain formal status of red notices in the following terms:

“the legal value attributed to red notices varies considerably from one State

to another, ranging from a simple alert, to an official request to place a

suspect in custody, to an official request to make a provisional arrest. It

should, however, be noted that only a minority of States have given explicit

legal value to red notices in their national laws.”).

82. Charles R. Both, supra note 2, at 359 (note that Both also gives a

detailed description of the case provided by Mr. Kazhegeldin’s lawyer). For

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292 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

However, a few months later in July 2000, while travelling

to Rome, Kazhegeldin was arrested and detained by Italian au-

thorities, again on the basis of an Interpol red notice issued at

the request of the Kazakh National Bureau. In addition to the

previously rejected charges, new allegations of terrorism-re-

lated crimes had been advanced against him. Once again, the

Kazakh general prosecutor did not provide sufficient evidence,

and the Italian authorities released Mr. Kazhegeldin, having

found that the charges were groundless.

One may wonder whether the Russian and Italian authori-

ties would have enforced the Kazakh warrant, had it not been

encapsulated in a red notice. Absent such a captivating inter-

national wrapping, would Mr. Kazhegeldin have enjoyed a

double stay in the Russian and Italian jails? Unlikely.

As the Kazhegeldin case shows, Interpol’s decision to pub-

lish and circulate a national arrest warrant may bear severe

consequences for the personal freedom of wanted persons.

Interpol’s parties tend to honor foreign warrants (that, absent

an extradition treaty, they would otherwise disregard) because

red notices are widely perceived as internationally sanctioned

measures, deserving, as such, deference and prompt imple-

mentation.

For this reason, many countries have declared themselves

a priori committed to considering red notices as valid warrants,

thus granting them a sort of “direct effect” in their land even

when the foreign request is not based on a previous agree-

ment. This “direct effect” and the resulting procedural simpli-

fication, however, do not imply any “supremacy” granted to

background on the case, see

UMAN

IGHTS

ATCH

UMAN

IGHTS

ORLD

EPORT

2001,

at 471-73 (2001); Ron Stodghill, Oil, Cash and Corruption,

N.Y.

IMES

Nov. 5, 2006, http://www.nytimes.com/2006/11/05/business/your

money/05giffen.html.

83. On the existence of an international rule of law, see Matthias Kumm,

International Law in National Courts: The International Rule of Law and the Lim-

its of the Internationalist Model, 44

. J. I

’

19 (2003). On the dangers

stemming from the assumption that international norms and decisions are

always “good” and thus deserve prompt implementation, see Kim L. Schep-

pele, The Migration of Anti-Constitutional Ideas: The Post-9/11 Globalization of

Public Law and the International State of Emergency, in

IGRATION OF

ON-

STITUTIONAL

DEAS

373 (Sujit Choudhry ed., 2007) (observing that “it is not

just constitutional ideas that migrate, but it may well be anti-constitutional

ideas as well”).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 293

the foreign warrant over domestic law. Red notices, in fact,

are different from European arrest warrants.

The 2002 European arrest warrant framework decision

contains a list of thirty-two categories of offences (the most im-

portant and troubling being “terrorism”) that give rise to sur-

render “without verification of the double criminality of the

act.”

Red notices, by contrast, do not trump the principle of

double criminality.

Extradition is always subject to the con-

dition that the acts for which the arrest warrant has been is-

sued constitute an offence under the law of the requested

state. If that condition is not fulfilled, national authorities are

free not to honor an Interpol-sponsored arrest request. Red

notices, thus, bear no constraint on national sovereignty. In

addition, extradition can be refused on human rights grounds

like the political offense exception,

while the European ar-

84. On the birth of the European arrest warrant, see Steve Peers, Mutual

Recognition and Criminal Law in the European Union: Has the Council Got it

Wrong?, 41

OMMON

. L. R

5 (2004); Susie Alegre & Marisa Leaf, Mu-

tual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case

Study—The European Arrest Warrant, 10

. L.J.

200 (2004). On the constitu-

tional implications, see Nico Keijzer, The European Arrest Warrant Framework

Decision between Past and Future, in

ONSTITUTIONAL

HALLENGES TO THE

U-

ROPEAN

RREST

ARRANT

13 (Elspeth Guild ed., 2006); Valsamis Mitsilegas,

The Constitutional Implications of Mutual Recognition in Criminal Matters in the

EU, 43

OMMON

. L. R

1277 (2006). For an illustration of the previ-

ous regime, see Mark Mackarel & Susan Nash, Extradition and the European

Union, 46

’

& C

OMP

. L.Q.

948 (1997).

85. For any other criminal offence, the principle of dual criminality con-

tinues to apply. Council Framework Decision 2002/584/JHA, of 13 June

2002 on the European Arrest Warrant and the Surrender Procedures be-

tween Member States art. 2(2), 2(4) 2002 O.J. (L 190) 3 (EC) [hereinafter,

“EAW Framework Decision”]; see also Nico Keijzer, The Double Criminality Re-

quirement, in

ANDBOOK OF THE

UROPEAN

RREST

ARRANT

137 (Rob

Blekxtoon & Wouter van Ballegooij eds., 2005). For an assessment of how

the (partial) abolition of the dual criminality verification works in practice,

see Elies van Sliedregt, The Dual Criminality Requirement, in

UROPEAN

RREST

ARRANT IN

RACTICE

51 (Nico Keijzer & Elies van Sliedregt eds.,

2009).

86. On this consolidated principle of extradition law, see Christine van

den Wyngaert, Double Criminality as a Requirement to Extradition, in

OUBLE

RIMINALITY

: S

TUDIES IN

NTERNATIONAL

RIMINAL

43 (Nils Jareborg ed.,

1989); Michael Plachta, The Role of Double Criminality in International Coopera-

tion in Penal Matters, in

OUBLE

RIMINALITY

: S

TUDIES IN

NTERNATIONAL

RIM-

INAL

supra at 84.

87. In any event, the exception has a limited reach: it only protects par-

ticipants in an uprising, see Pyle, supra note 77, at 313 (noting that “propo-

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294 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

rest warrant severely limits the ability to refuse the surrender

on human rights grounds

and abolishes the political offence

exception.

However, the binding nature of European arrest

warrants finds compensation in a detailed set of procedural

guarantees

and in the “judicialisation”—i.e. “de-administra-

tivisation”—of the extradition process.

nents of political offense exception often overstate its effectiveness in avert-

ing foreign injustice”), while in most cases opponents of national regimes

are protected by the principle of non-refoulement. This principle of refugee

law forbids the expulsion of a refugee (rectius, of any person) into a country

where the person might be subjected to persecution.

88. Article 1(3) of the EAW Framework Decision, supra note 85, explicitly

acknowledges the obligation to respect fundamental rights and fundamental

legal principles as enshrined in article 6 of the Treaty on European Union.

However, in their implementing laws, ten member states have retained the

power to oppose human rights exceptions: see Annex to the Report from the

Commission on the implementation since 2005 of the Council Framework

Decision of 13 June 2002 on the European arrest warrant and the surrender

procedures between Member States, Brussels, 11 July 2007, COM (2007) 407

final. On the implementation of the European arrest warrant, see also Mas-

simo Fichera, The European Arrest Warrant and the Sovereign State: A Marriage of

Convenience?, 15

. L.J.

70, 81 (2009); Sebastian Combeaud, Implementation

of the European Arrest Warrant and the Constitutional Impact in the Member States,

ONSTITUTIONAL

HALLENGES TO THE

UROPEAN

RREST

ARRANT

, supra

note 84, at 187; Mark Mackarel, The European Arrest Warrant—the Early Years:

Implementing and Using the Warrant, 15

. J.

RIME

, C

RIM

. L. & C

RIM

UST

37 (2007); Mar Jimeno-Bulnes, The Enforcement of the European Arrest

Warrant: A Comparison Between Spain and the UK, 15

. J.

RIME

, C

RIM

. L.

& C

RIM

. J

UST

263 (2007).

89. The 1996 EU Convention on Extradition between Member States al-

ready made this ground of exception non-opposable within the realm of ter-

rorism. Council Act of 27 Sept. 1996 on Extradition between Member States

96/C, 1996 O.J. (313/02), available at http://www.dipublico.com.ar/en-

glish/treaties/convention-on-extradition-between-the-member-states-of-the-

european-union/). The EAW Framework Decision goes beyond terrorism,

making the abolition absolute. The only mandatory grounds for refusal, ac-

knowledged in article 3 of the EAW Framework Decision, supra note 85, are

amnesty, ne bis in idem and the age of the suspect. Article 4 mentions other

optional grounds for refusal, none of which refers to the political offence

exception. Id. Yet, in some member states (Italy, Denmark and Portugal),

some form of political offence exception has been reintroduced: see Fichera,

supra note 88, at 88-89.

90. See EAW Framework Decision, supra note 85, art. 14, 15, 17, 23.

91. See Michael Plachta, European Arrest Warrant: Revolution in Extradi-

tion?, 11

. J.

RIME

, C

RIM

. L.

AND

RIM

. J

UST

178, 187 (2003) (“Argua-

bly the most striking feature of the extradition system based on the Frame-

work decision is its removal outside the realm of the executive. The sole

responsibility for this procedure has been placed in the hands of the judici-

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 295

Despite these relevant differences, the Kazakh case makes

clear that a “soft” Interpol red notice may affect personal free-

dom in a way that is very similar to the impact of a “hard”

European arrest warrant,

without being accompanied by a

comparable set of guarantees.

Though formally non-bind-

ing, red notices bestow a “superior legitimacy” on foreign ar-

rest warrants that would be otherwise disregarded. As a result,

the issuance of a red notice had a crucial impact on the per-

sonal liberty of Mr. Kazhegeldin. To his freedom, a red notice

was de facto equivalent to a binding arrest warrant. This state-

ment needs, now, to be qualified in legal terms, in order to

substantiate the claim that a red notice, despite its formal

“softness,” deserves substantive consideration as an interna-

tional administrative act.

C. Red Notices as “Soft” International Administrative Acts

One way to drive the point home is to ask why most In-

terpol members tend to honor red notices as if they were bind-

ing. One reason is illustrated by the third above-mentioned

ary. . . . Since the procedure for executing the European arrest warrant is

primarily judicial, the political phase inherent in the extradition procedure

was abolished. Accordingly, the administrative redress phase following the

political decision was also abolished.”).

92. It is worth noting that, according to the EAW Framework Decision,

supra note 85, (a) the domestic authority issuing a European arrest warrant

may “decide to issue an alert for the requested person in the Schengen In-

formation System (SIS)” (or, “if it is not possible to call on the services of the

SIS, the issuing judicial authority may call on Interpol to transmit a Euro-

pean arrest warrant”); (b) “[a]n alert in the Schengen Information System

shall be equivalent to a European arrest warrant.” Art. 9(2)-(3), 10(3). Two

points need to be emphasized. First, the E.U. decision treats SIS and the

Interpol global communication network as functionally equivalent, neglect-

ing their different potential. See Ronald K. Noble, Interpol Secretary Gen-

eral, Keynote Speech at the 11th Annual European Police Congress (Jan. 30,

2008) (insisting that “it is crucial to use INTERPOL channels to inform law

enforcement worldwide about wanted fugitives. All too often, when a Euro-

pean Arrest Warrant is issued, it is not circulated to non-European coun-

tries.”). Second, and more important, the E.U. decision explicitly qualifies

the arrest warrant and its notice (or alert) as legally “equivalent,” thereby

preventing the rise of a gap between form and substance. As observed, In-

terpol regime adopts the opposite solution, because it clearly distinguishes

the arrest warrant from the notice and treats the latter as a mere communi-

cation element of a complex administrative act. See supra Part III.A.

93. On the (low) level of legal protection that accompanies the issuing of

red notices, see infra Part IV.

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296 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

condition for the issuing of notices. That condition requires

national authorities to draft their arrest warrants “in conform-

ity with national laws and/or the applicable bilateral and multilat-

eral treaties” if they want it to be circulated by Interpol. The

implication of this conformity requirement deserves particular

attention. If Italy receives a red notice encapsulating a warrant

from the U.S. and the warrant complies—as it should, accord-

ing to Interpol’s condition—with the requirements enshrined

in a pre-existing Italy-U.S. bilateral treaty,

then it is hardly

possible for the Italian authorities to claim that they can legally

disregard the notice. In short, if a red notice is consistent with

(and thus “covered” by) an extradition treaty, it amounts to an

act with legal force. This case of “regime complex”

—in

which informal Interpol rules overlap with formal bilateral or

multilateral treaties—determines the “hardening” of a “soft”

administrative instrument: red notices circulate globally, bor-

rowing their (legal) teeth from pre-existing treaties.

What, then, if there is no underlying international treaty?

Here a second dynamic emerges. Even in the absence of an

extradition treaty, domestic law usually provides a basis to ex-

tradite fugitives.

As observed, “The requirements for extradi-

tion pursuant to a domestic law often mirror the requirements

set forth in a bilateral or multilateral treaty and the domestic

process under the law to effect the fugitive’s return is practi-

cally identical.”

If that is true, a silent process of cross-fertili-

zation and harmonization seems at work in the field of extradi-

94. Extradition Treaty, U.S.-It., art. X, Oct. 13, 1983, 35.2 U.S.T. 3023.

95. See Kal Raustiala & David G. Victor, The Regime Complex for Plant Ge-

netic Resources, 58

’

277, 279 (2004) (“Regime complexes are

marked by the existence of several legal agreements that are created and

maintained in distinct fora with participation of different sets of actors. The

rules in these elemental regimes functionally overlap, yet there is no agreed

upon hierarchy for resolving conflict between rules.”).

96. Chapter 209 of the United States Code, for instance, authorizes extra-

dition both on the basis of a treaty with the requesting government and,

absent such a treaty, “in the exercise of comity.” 18 U.S.C. § 3181 (2006).

The principle of comity is well established in the practice of diplomatic rela-

tions on judicial matters in many states. However, some states decide to

honor a red notice only after reviewing the identity of the requesting coun-

try to ensure an extradition treaty exists between the two countries.

97. David P. Warner, Challenges to International Law Enforcement Cooperation

for the United States in the Middle East and North Africa: Extradition and its Alter-

natives, 50

ILL

. L. R

479, 488 (2005).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 297

tion law: the conditions under which national authorities pro-

cess the requests of extraditions (and pre-extradition arrest)

appear to gradually converge toward a common set of stan-

dards,

whose protective capacity tends to weaken in compari-

son to the domestic law guarantees surrounding personal free-

dom.

Against this backdrop, if we recall once again the third

condition for the issuing of notices—the one that requires the

conformity of arrest warrants “with national laws and/or the ap-

plicable bilateral and multilateral treaties”—we come to real-

ize that national warrants complying with the conditions for

issuing a red notice ipso facto also satisfy, more often than not,

the relevant international or domestic legal requirements.

100

Let us imagine that Italian authorities receive a red notice

encapsulating an arrest warrant from a country having signed

no treaty on extradition with Italy. And let us assume that,

nonetheless, the foreign request is consistent with the relevant

98. Nonetheless Interpol laments that, as far as the cooperation based on

red notices is concerned, a relevant problem is represented by “the lack of a

universally applicable instrument” in extradition law, which “does not pro-

vide an instrument which would be universally applicable by States.” In-

terpol, Report No. 13 to the General Assembly, supra note 81, at 2.

99. See

YLE

, supra note 77, at 301-06 (arguing that various (fallacious)

assumptions account for this lower level of protection, namely a) the idea

that extradition does not affect “us” but “them” (80-90 percent of the extra-

dition cases concerns aliens, i.e. non-citizens of the extraditing country), b)

the assumption that extradition magistrates do not exert a proper “judicial

power” in certifying the extradition, and c) somewhere – as in the United

States – the idea that extradition is not a criminal proceeding, but rather a

civil or an administrative one). For examples of the latter view, see, e.g.,

United States v. Galanis, 429 F. Supp. 1215, 1224 (D. Conn. 1977); Romeo v.

Roche, 820 F.2d 540, 534-44 (1st Cir. 1987) (both courts refusing to apply

criminal law safeguards to extradition proceedings because they are not

technically part of a criminal prosecution). This view is also shared in the

comment of the Advisory Committee on Rule 1101 of the Federal Rules of

Evidence: “Extradition and rendition proceedings are . . . essentially admin-

istrative in character.”

100. Some laws and treaties may raise the standard by requiring a prima

facie case for extradition. This requirement may cause relevant asymmetries,

as illustrated by the case of the U.K.-U.S. extradition treaty signed in 2003.

Under the new treaty, the allegations of the U.S. government will be enough

to secure the extradition of people from the U.K. However, if the U.K. wants

to extradite someone from the U.S., evidence to the standard of a “reasona-

ble” demonstration of guilt will still be required. Extradition Treaty, U.S.-

U.K., art. 8, ¶ 3(c), Mar. 31, 2003,

S. T

REATY

. N

108-23.

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298 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

Italian law (e.g. the request stands the main grounds of re-

fusal: the “double criminality” test,

101

the “political crime” and

human rights exception,

102

and so on).

103

In such a case,

shouldn’t the Italian authorities be bound by the Interpol-

sponsored warrant exactly in the same way as if it were a for-

mal international arrest warrant? Of course, even in that case,

a state could disregard the red notice. Yet, the same holds

true with almost any “formal” international measure, binding

in theory, much less so in practice.

104

In both cases, in fact,

national authorities that do not comply violate either the un-

derlying international treaty or their own domestic law (or

even both). Under such conditions, the difference between a

binding arrest warrant and a non-binding one vanishes.

Accordingly, an Interpol red notice can be conceptual-

ized as a “parasitic” administrative act: just like parasites feed

on other “organisms,” being unable to live on its own, so do

red notices, which draw their binding force from other legal

texts. However, reliance on other regimes (in our case, inter-

national or national extradition regimes) does not imply a lack

of autonomous legal salience. It rather highlights the underly-

ing “existential” dynamic, i.e. the legal rationale behind the

practice of most of Interpol’s members: they commit them-

selves to honor red notices because, by experience, they learn

101. Codice penale [C.p.] [Penal Code] art.13(2) (It.).

102. Codice di procedura penale [C.p.p.] [Penal Procedure Code] art.

698 (It.).

103. Moreover, the documentation required by Article 700(2) of the Ital-

ian Penal Procedure Code to support a foreign arrest warrant—a statement

of the alleged criminal conduct and its circumstances, the kind and amount

of the corresponding penalty, identity and factual details in order to facili-

tate the search and apprehension—largely corresponds to the documenta-

tion required for publishing a red notice. See Implementing Rules, supra note

56, art. 37(1).

104. On the question of why states obey international law, see generally

Thomas M. Franck, Legitimacy in the International System, 82

. J. I

’

705

(1988); Ian Hurd, Legitimacy and Authority in International Politics, 53

’

379 (1999). On domestic compliance with international law, see gen-

erally Abraham Chayes & Antonia Handler Chayes, On Compliance, 47

’

172 (1993); Harold H. Koh, Why Do Nations Obey International Law?, 106

ALE

L. J.

2599 (1997); Kal Raustiala, Compliance and Effectiveness in Interna-

tional Regulatory Cooperation, 49

ORLD

482 (2000); Kal Raustiala &

Anne-Marie Slaughter, International Law, International Relations and Compli-

ance, in

ANDBOOK OF

NTERNATIONAL

ELATIONS

538 (Walter Carlsnaes,

Thomas Risse & Beth A. Simmons eds., 2002).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 299

that Interpol-sponsored warrants are consistent with domestic

and international law and are, therefore, legally equivalent to

proper international arrest warrants. As observed, “regulatory

cooperation, both hard and soft, amounts to administration by

agreement in a way just as substantial as agreement by treaty.

Drawing careful distinctions between hard and soft law makes

little sense where nonbinding rules can have such binding ef-

fect.”

105

It seems, thus, not hazardous to conclude: (a) that red

notices are “soft” international administrative acts; (b) that

their “softness,” consequent to their formally non-binding na-

ture, does not prevent them from impinging upon individual

freedoms, due to their substantial binding nature (widespread

recognition); (c) that this substantive “hardening” is the effect

of a triangular process of “borrowing regimes,” with both inter-

national treaties and domestic laws on extradition lending

their legal force to Interpol notices; (d) that this mutually

reinforcing process is allowed by a process of spontaneous con-

vergence that levels the requirements for extradition in inter-

national and domestic law, eventually generating an informal

phenomenon of “mutual recognition;” (e) that Interpol

“softly” but decisively contributes to such a process of conver-

gence. Thanks to its crucial role as global circulator of na-

tional warrants, its internal conditions for the issuing of no-

tices result in the setting of a global standard.

IV. R

OTICES AND

EGAL

CCOUNTABILITY

Interpol red notices are a manifestation of an administra-

tive power that is both “soft,” because it is formally non-bind-

ing, and “authoritative,” insofar as it has the potential to limit

personal liberty.

106

Is there any reason to worry? Do we really

105. David Zaring, Informal Procedure, Hard and Soft, in International Admin-

istration, 5

. J. I

’

547, 595 (2005).

106. The classic notion of the “authoritative” administrative act goes back

to Otto Mayer, who famously depicted an administrative measure as an “au-

thoritative pronouncement of the administration which in an individual case

determines the rights of the subject.”

TTO

AYER

, D

EUTSCHES

ERWAL-

TUNGSRECHT

(vol. I, 1895). On the German roots of this conceptual

framework, later adopted by most legal cultures in continental Europe, see

Mahendra P. Singh,

ERMAN

DMINISTRATIVE

AW IN

OMMON

ERSPEC-

TIVE

63 (2001);

UCA

ANNORI

& B

ERNARDO

ORDI

TORIA DEL DIRITTO AM-

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300 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

need the rule of law to be established at the Interpol level to

keep in check an administrative power that is merely “soft”?

107

A first attempt to deny such a need can be based on the

following warning: not to forget that the main site for the pro-

tection of individual rights is still domestic, because national

courts provide all the concerned persons with the necessary

due process guarantees.

108

“Bottom-up” review of interna-

tional regulatory power by domestic courts is a crucial account-

ability tool in a global administrative law perspective: where

control from the top is loose, control from the bottom may

compensate.

109

This holds true also in the case of red notices. In the

country of extradition, the arrested enjoys (at least, in princi-

ple) full rights of defense before a court. A red notice may

lead to deprivation of personal freedom, but nonetheless does

not raise a doubt vis-

a-vis the person’s innocence, which re-

mains a question for the competent judicial authorities to de-

termine. Isn’t this judicial double-check, typical of extradition

procedure, enough?

Before answering, a clarification is in order. The promo-

tion of worldwide police cooperation yields a troublesome ex-

ternality: Interpol’s door is open to all the countries of the

world, including countries where fundamental rights are disre-

garded or where prosecutors and courts are not independent.

Therefore, to declare in advance—as many states do—that In-

terpol red notices are to be honored is risky: the danger is

there that, by granting Interpol red notices automatic enforce-

ment, police forces of a liberal state may unexpectedly become

the executive arm of an illiberal government. In the red no-

MINISTRATIVO

369 (2001) (providing an illuminating comparative analysis of

the historical evolution of administrative law).

107. For a negative answer, justified in a strictly positivist perspective, see

Jean d’Aspremont, Softness in International Law: A Self-Serving Quest for New

Legal Materials, 9

. J. I

’

1075 (2008). The issue is also extensively

discussed in the Conclusion infra.

108. This position is common to scholars who deny the autonomous rele-

vance of red notices as (international) administrative acts. See Sch

ondorf-

Haubold, supra note 15, at 1942.

109. Stewart, U.S. Administrative Law, supra note 49, at 76-88.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 301

tice system, a crucial element of extradition procedures is ab-

sent, and that is trust.

110

Trust is the reason ad hoc bilateral or multilateral agree-

ments are the privileged source of legal commitments to extra-

dite. By signing treaties, liberal governments select counter-

parts they can rely upon, (also) having regard to their rule of

law “pedigree.”

111

By contrast, Interpol-sponsored coopera-

tion follows a different logic: governments choose to commit

themselves to international cooperation and, hence, to trust

Interpol rather than the other members. State-by-state com-

mitment, usually enshrined in bilateral treaties, is mediated

(and substituted) by acknowledging Interpol as guarantor of

fair international cooperation.

Assessed in this perspective, the previous question

(“Aren’t the typical extradition law guarantees enough?”) de-

serves a negative answer. Interpol red notices are autonomous

administrative acts, conceptually distinct from the underlying

national arrest warrant: hence, something more than the usual

extradition guarantees is required. The relevant question,

thus, becomes the following: whether Interpol has put in place

the legal infrastructure necessary to act as “reliable guarantor,”

or, more accurately, whether the processing of red notices has

built-in due process guarantees that are sufficient to prevent

the international circulation of ill-founded national arrest war-

rants.

112

110. The issue of trust has been extensively debated in the European

Union with regard to the choice between harmonization and mutual recog-

nition. See, e.g., Cardiff European Council, Presidency Conclusions, SN 150/1/

98 REV 1 (June 15, 1998); Hans Nilsson, Mutual Trust and Mutual Recognition

of Our Differences, in

ECONNAISSANCE

UTUELLE DES

ECISIONS

UDICIAIRES

ENALES DANS L

’U

NION

UROP

EENNE

155 (G. De Kerchove & A. Weyembergh

eds., 2001). For a discussion of these issues after the introduction of the

European arrest warrant, see Florian Geyer, The European Arrest Warrant in

Germany, in

ONSTITUTIONAL

HALLENGES TO THE

UROPEAN

RREST

AR-

RANT

supra note 84, at 115.

111. See, e.g.,

SIDORO

ANOTTI

XTRADITION IN

ULTILATERAL

REATIES

AND

ONVENTIONS

(2006) (analysing extradition agreements among Ameri-

can countries).

112. It would be ingenuous—one might nonetheless contend—to expect

that an international institution, whose aim is to promote police coopera-

tion, should also correct domestic “failures” (e.g., disregard for the rule of

law) occurring in non-democratic countries. Reasonable as it may seem, this

objection misses the point. The correction invoked here does not pertain to

a national measure (arrest warrant). It rather pertains to the legal accounta-

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302 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

In Part IV, it is submitted that Interpol red notices system

allows some room for solutions (so far, only partially intro-

duced) that enhance legal accountability without harming the

effectiveness of international cooperation. From a global ad-

ministrative law perspective, functional and normative needs

of international police cooperation can be reconciled, at least

to a considerable extent. In Section IV.C, I try to substantiate

this claim, after a critical analysis—carried out in Sections

IV.A-IV.B—of the guarantees provided for in Interpol’s

processing of red notices.

A. The Kazakh Case (II): The Administrative Control

As the previous discussion of the Kazakh case makes

clear,

113

judicial control offered by the countries where the ar-

rest takes place may be effective in preventing extradition, but

not an unjust (albeit temporary) detention. Although Russian

and Italian magistrates did their job pretty well, in fact, Mr.

Kazhegeldin had to suffer a patent violation of his right to per-

sonal liberty and spend some days in jail. And not just once,

but twice.

However, the Kazakh case did not end with the second

detention of Mr. Kazhegeldin in July 2000. One year later, Mr.

Kazhegeldin was sentenced “in absentia” by the Supreme

Court of Kazakhstan to ten years in prison for crimes involving

the use of weapons. At the request of the Kazakhstan National

Central Bureau, the Interpol Secretariat General issued a new

red notice (the third!) against Mr. Kazhegeldin, on the basis of

the Supreme Court ruling. However, the Secretariat General

itself subsequently ascertained that (once again) the evidence

submitted did not support the charges. Therefore, Interpol

decided to revoke the notice on the basis of article 3 of its

bility of an international regime (Interpol) and its administrative acts (red

notices). If it is not possible to prevent the issuing of biased arrest warrants

at a domestic level, it is still possible, and perhaps necessary, not to grant

those warrants any international approval, that is, any substantive extra-terri-

torial force. In any case, multilateral institutions can also contribute to en-

hancing democracy at a national level in many ways, including through pro-

tection of individual rights and improvement of the quality of democracy.

See Robert O. Keohane, Stephen Macedo & Andrew Moravcsik, Democracy-

Enhancing Multilateralism, 63

’

1 (2009) (arguing that multilateral

institutions can enhance democratic processes).

113. See supra Part III.B.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 303

Constitution, which prohibits any intervention or activities of a

political, military, religious or racial character. The Executive

Committee unanimously upheld the decision, but the General

Assembly, whose decision is final, eventually overturned it. On

the insistence of the Kazakhstan National Central Bureau, the

General Assembly re-examined the decision on October 24,

2002 and reinstated the red notice by a 46-38 majority (with 23

abstentions).

114

While the initial events of the Kazakh case (discussed in

Part III) taught us what happens when Interpol does not care-

fully check a domestic request of red notice, the subsequent

events illustrate the opposite situation, namely what happens

(or may happen) when Interpol subjects a national request to

a review process. Two aspects deserve a closer analysis: the

role of the Secretariat General in reviewing the Kazakh request

and the role of the General Assembly in settling the dispute.

The former aspect is dealt with in the following pages, whereas

the latter is analyzed in the next section (Part IV.B).

1. Ex Ante Scrutiny

When a state submits a request to publish a red notice,

the General Secretariat takes a (first-instance) decision on the

basis of an ex ante scrutiny of the request.

115

The general aim

of this preventive control is to ensure that requests of red no-

tice comply with Interpol’s Constitution and its basic rules.

This compliance is assessed having regard to three main obli-

gations: to respect “the basic rights of individuals in conform-

ity with . . . the Universal Declaration of Human Rights” (rule of

law requirement);

116

to avoid “any intervention . . . of a political,

military, religious or racial character” (neutrality require-

ment);

117

to verify that domestic authorities process informa-

114. Press release, Interpol, Interpol re-issue of red notice on former Ka-

zakhstan PM (October 24, 2002).

115. It should be noted that the General Secretariat’s control, described

here as an ex ante mechanism, may well be carried out ex post, after the publi-

cation of a red notice, when a state so requests or when new relevant facts

emerge. When this happens, the same requirements and conditions as in

the ex ante scrutiny apply. Thus, the General Secretariat, after having re-

viewed the grounds of the national arrest warrant on which a red notice is

based, can cancel it, as happened in the mentioned Kazakh case.

116. Interpol Constitution art. 2.

117. Id. art. 3.

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304 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

tion through the Interpol’s channels in conformity with the

international conventions to which they are a party, as well as

“in the context of the laws existing” in their countries (legality

requirement).

118

In order to ensure respect for these requirements, the

General Secretariat is entrusted with three instruments. First,

it has no autonomous power of investigation, but it can ask the

requesting country to clarify doubts either of formal or of sub-

stantive nature.

119

Secondly, it can adopt precautionary mea-

sures that may indirectly caution the members about the con-

tent of a red notice.

120

An example is the publication of an

addendum to a red notice, indicating that the extradition of

the fugitive has been denied by another country.

121

Finally,

and most importantly, the General Secretariat may reject a re-

quest to issue a red notice, when the publication would con-

flict with the mentioned requirements.

122

Having clarified the aims and the tools available to the

General Secretariat to carry out an ex ante scrutiny of national

requests for red notices, we now turn to the crucial question:

are the mentioned tools adequate to satisfy the demanding

118. Processing Rules, supra note 56, art. 10(1)(a)(5).

119. The General Secretariat can consult the requesting national central

bureau “if there is any doubt about whether the criteria for processing an

item of information are being met.” Id. art. 10(1)(g).

120. Precautionary measures can be adopted “to prevent any direct or in-

direct prejudice the information may cause to the member countries, the

Organization or its staff, and with due respect for the basic rights of individu-

als the information concerns.” Id. art. 10(1)(h).

121. A similar addendum is presumably attached to the red notice still

pending on Mr. Kazhegeldin. The addendum cautions members and en-

courages them to obtain the relevant information from the country that has

issued the arrest warrant. This may certainly lead to a decision not to respect

the request for cooperation forwarded by the red notice in the particular

case, while another country may decide to disregard that information if it

considers it to be irrelevant for its purpose (e.g. the extradition was denied

by country A based on lack of dual criminality, while this problem will not

arise if country C is asked to extradite that individual). I owe this point to

Yaron Gottlieb.

122. According to Article 10(5)(b) of the Processing Rules, supra note 56,

“[b]efore publishing and circulating a notice . . . the General Secretariat

shall assess whether it is necessary and advisable to do so, in the light of

Articles 2 and 3 of the present Rules.” For a discussion of the human rights

and discrimination language in Articles 2-3 of the Processing Rules, see supra

notes 116–17 and accompanying text.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 305

purposes of the control? Is the General Secretariat able to as-

certain the compliance of each request of red notice with the

three mentioned requirements (rule of law, neutrality and le-

gality)?

This question needs to be put in context. Red notices are

processed within the General Secretariat by an ad hoc depart-

ment, whereas the Office of Legal Affairs, a rather small unit

carrying out all the legal tasks of the organization, gets in-

volved when legal issues arise (e.g. application of article 3 of

the Constitution). One may infer from this that a legal assess-

ment of domestic arrest warrants underlying red notices is

merely eventual. Observation of Interpol’s practice, in effect,

suggests that a full assessment of national requests is not sys-

tematically carried out, but is instead supplemented by a

rather formal scrutiny.

As for the latter (formal scrutiny), it takes place on a regu-

lar basis before the issuance of a notice. The General Secreta-

riat, in fact, “shall ensure that the conditions attached to the

given notice are met.”

123

These conditions are instrumental to

the effectiveness of international cooperation: they serve to

make a red notice consistent with some basic police coopera-

tion requirements,

124

whereas they do not touch upon the

ground of the warrant.

125

Does this mean that the mentioned

substantive requirements (rule of law, neutrality and legality)

are forgotten in Interpol’s practice?

This question is not easy to answer for an external ob-

server. However, the evidence available seems to confirm that

a substantive scrutiny mainly takes place in two situations:

when the requests conflicts with extradition law and when the

charge openly or potentially amounts to a political offense.

123. Implementing Rules, supra note 56, art. 37(b). Interpol authorizes a

notice if the national arrest warrant provides sufficient identity information

“to allow for the co-operation requested to be effective. The notice must

also ensure that “references to an enforceable arrest warrant, court decision

or other judicial documents are provided; and provide assurances that “ex-

tradition will be sought upon arrest of the person.” Id. art. 37(a)(1)(ii).

These conditions are examined in Part III.A supra.

124. See supra Part III.C.

125. The assumption is that “the information is considered, a priori, to be

accurate and relevant, if it has been provided by a National Central Bureau,

an authorized national institution, or authorized international entity.”

Processing Rules, supra note 56, art. 10(1)(f).

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306 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

With regard to the first scenario, if one accepts the qualifi-

cation of a red notices as a “parasitic” administrative act (bor-

rowing its legal force from the existing national and interna-

tional norms concerning extradition),

126

it follows that, when

there is a conflict with extradition norms, a red notice has very

few chances to be honored. For this pragmatic reason, the

General Secretariat, while processing requests of red notices,

pays particular attention to consistency with extradition law.

If, for instance, the wanted person is a president of another

country, the red notice requested is not issued (or, if already

published, it is immediately cancelled). Such a red notice, in

fact, could hardly be implemented, given the conflict with the

international law principle of immunity.

127

The second hypothesis regards the control based on arti-

cle 3 of the Interpol Constitution, forbidding “any interven-

tion . . . of a political, military, religious or racial character.”

This control is easier to make when the charge is prima facie

based on a political offence: in this case, Interpol immediately

rejects the request.

128

Other times, the control is more com-

plex.

129

When the nature of the offence is dubious—as in the

case of Mr. Kazhegeldin or when the charge is related to ter-

126. See supra Part III.C.

127. This principle has been established in Arrest Warrant of 11 April 2000

(Dem. Rep. Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14), concerning an arrest

warrant issued in 2000 by Belgium against Mr. Abdulaye Yerodia Ndombasi,

by then minister of foreign affairs of Congo. The International Court of

Justice held that the adoption and circulation of the Belgian warrant failed

to respect diplomatic immunity established by international law. Id. In-

terpol’s practice conforms to this principle. See, e.g., Press Release, Interpol,

Interpol statement on Honduras President Manuel Zelaya (July 3, 2009)

(stating that “Interpol’s jurisprudence based on international law prevents it

from issuing a Red Notice for the arrest of any President, Head of State or

Government unless it has been requested to do so by an international tribu-

nal.”).

128. If, for example, a country requests the publication of a red notice

based on the charge of treason, the General Secretariat will generally not

publish it, as this charge is considered a political offence in international

extradition law and, therefore, also within the meaning of article 3 of the

Interpol Constitution.

129. According to article 40 of the Implementing Rules, supra note 56, all

relevant information must be examined in the context of an article 3 analy-

sis, including, for example, the general context. Therefore, in principle, the

nature of the offence is only one of the elements that is examined.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 307

rorism

130

—the General Secretariat consults the requesting na-

tional central bureau in order to better assess the nature of the

offence.

131

The reason of the special care devoted to the neu-

trality requirement is twofold. On the one hand, extradition

law itself provides for the political offence exception: very few

countries would extradite a person charged with treason. On

the other hand, by checking this requirement, Interpol pro-

tects its own political neutrality and, hence, its capacity to fos-

ter international police cooperation. This stricter scrutiny is

due to the convergence of functional and normative needs.

What, then, about the other two requirements, namely

the respect of fundamental rights (rule of law) and of national

and international norms that bind the member states (legality

requirement)?

As for the latter, the impression is that Interpol jurispru-

dence tends to pragmatically narrow it, to the extent that only

compliance with extradition law norms—as just explained—is

carefully assessed.

132

Also, the rule of law scrutiny appears to

be less than systematic. This review would be complex, given

the variety of fundamental rights protected by the Universal

Declaration of Human Rights. Yet, there is no need to stress

its utmost importance. Imagine the case of a fugitive who, if

apprehended and extradited in the requesting country, risks

facing torture or inhuman treatment. In a similar case, the

130. U.N. Conventions qualify specific terrorist conduct as crimes that no

longer enjoy the status of a political offence within the meaning of extradi-

tion law. However, when the charge concerns membership in a terrorist or-

ganization, the political nature of the offence resurfaces because the mean-

ing of “terrorist organization” in many countries is a salient political issue.

Not surprisingly, Interpol refrains from engaging in a legal determination of

what constitutes a terrorist organization. Rather, if Interpol receives a red

notice request seeking the arrest of a person for the crime of membership in

a terrorist organization, the General Secretariat requires the source of infor-

mation to provide facts attesting to the illegal activities (e.g. bombing) of the

particular group and to the meaningful link of the individual to that group,

to ensure the request is not used as a form of a political tool.

131. As a matter of practice, in case the red notice request contains both

political and ordinary-law elements, Interpol applies the predominance test

(which is used in international extradition law) to determine the overall na-

ture of the case.

132. Various reasons account for this choice: not only the over-breadth of

the requirement and the natural tendency to focus on legal requirements

that provide the act with an effect utile, but also the administrative workload

and the relevance of time-factor in the circulation of the notice.

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308 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

extradition would clearly violate the principle of non-refoule-

ment.

133

Should Interpol accept a national request to issue a

red notice in such circumstances? More generally, should In-

terpol’s commitment to the rule of law (including the prohibi-

tion against refoulement) imply a systematic rejection of all the

requests of red notice coming from member states with dubi-

ous human rights record?

It would be difficult to argue that Interpol’s issuance of

such a notice would be consistent with the respect of funda-

mental rights. Albeit indirectly, the issuance would run

counter to the obligation of all states not to return or extradite

any person to a country where the life or safety of that person

would be seriously endangered.

134

The same principle also ap-

plies when the person to be extradited would be deprived of

133. The principle of non-refoulement is codified by article 33(1)(A) of the

1951 United Nations Convention Relating to the Status of Refugees, Jul. 28,

1951, 189 U.N.T.S. 150 [hereinafter Refugee Convention], which states that

“[n]o Contracting State shall expel or return a refugee in any manner what-

soever to the frontiers of territories where his life or freedom would be

threatened on account of his or her race, religion, nationality, membership

of a particular social group or political opinion.” The principle is now rec-

ognized as jus cogens of international law. All states, therefore, whether or

not they are a party to conventions incorporating the prohibition against

refoulement, are bound by the principle. See

ATE

ASTRAM

& M

ARILYN

CHIRON

, UN H

IGH

OMM

’

EFUGEES

& I

NTER

-P

ARLIAMENTARY UNION

EFU-

GEE

ROTECTION

: A G

UIDE TO

NTERNATIONAL

EFUGEE

100 (2001)

(“This principle of non-refoulement is considered a rule of customary interna-

tional law.). For an updated overview, see

EES

OUTERS

’

EGAL

TAN-

DARDS FOR THE

ROTECTION FROM

EFOULEMENT

(2009).

134. Various international treaties on terrorism and extradition enshrine

the principle of non-refoulement. The European Convention on Extradition,

for instance, prohibits extradition in cases where a state party “has substan-

tial grounds for believing that a request for extradition for an ordinary crimi-

nal offence has been made for the purpose of prosecuting or punishing a

person on account of his race, religion, nationality or political opinion, or

that that person’s position may be prejudiced for any of these reasons.” Eu-

ropean Convention on Extradition art. 3(2), Dec. 13, 1957, E.T.S. no. 024.

An analogous provision can be found in Article 3(b) of the UN Model

Treaty on Extradition, G.A. Res. 45/116, U.N. Doc. A/RES/45/116 (Dec.

14, 1990), amended by G.A. Res. 52/88, U.N. Doc. A/Res/52/88 (Dec. 12,

1997). See also

NTERNATIONAL

ELSINKI

EDERATION FOR

UMAN

IGHTS

(IHF)

NTI

TERRORISM

EASURES

, S

ECURITY AND

UMAN

IGHTS

– D

EVELOP-

MENTS IN

UROPE

, C

ENTRAL

SIA AND

ORTH

MERICA IN THE

FTERMATH OF

EPTEMBER

167-83 (2003).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 309

internationally recognized rights of defense in the requesting

state.

135

No exceptions to the ban of refoulement are allowed.

136

However, an affirmative answer to those questions would

put Interpol in a politically uncomfortable situation, due to

the tension that may arise with the member whose request is

found to violate a basic right. Moreover, such a strict applica-

tion of the rule of law requirement would ultimately threaten

the basis for police cooperation with most African and Asian

countries. A possible way out is the existence of a ruling by a

regional human rights courts as an “objective” ground to re-

fuse certain requests.

137

And, yet, this way out is rarely availa-

135. See European Convention on the Suppression of Terrorism, explana-

tory report, ¶ 50, Jan. 27, 1977, E.T.S. no. 090 (requesting State may refuse

extradition on suspicion of political persecution even if the extradited party

would be denied rights of defense guaranteed by European Convention on

Human Rights); Human Rights and the Fight against Terrorism: The Council of

Europe Guidelines, at 11, (July 15, 2002), available at http://www.coe.int/t/

dghl/standardsetting/victims/Guidelines%20CM.pdf (“When the person

whose extradition has been requested makes out an arguable case that he/

she has suffered or risks suffering a flagrant denial of justice in the request-

ing State, the requested State must consider the well-foundedness of that

argument before deciding whether to grant extradition.”).

136. According to article 33(2) of the Refugee Convention, supra note

133, the ban does not apply to a refugee “whom there are reasonable

grounds for regarding as a danger to the security of the country in which he

is or who, having been convicted by a final judgment of a particularly serious

crime, constitutes a danger to the community of that country.” However,

this provision is only applicable when it is proved that there is a direct link

between the presence of a refugee in the territory of a particular country

and a national security threat to that country. See

UMAN

IGHTS

ATCH

UMAN

IGHTS

MPLICATIONS OF

UROPEAN

NION

NTERNAL

ECURITY

RO-

POSALS AND

EASURES IN THE

FTERMATH OF THE

EPTEMBER

11 A

TTACKS IN

THE

NITED

TATES

(2001). More importantly, according to the jurispru-

dence of the UN Human Rights Committee and the European Court of

Human Rights (developed under article 7 of the International Covenant on

Civil and Political Rights and Article 3 of the European Convention on

Human Rights), the ban on refoulement is absolute and does not admit dero-

gation. See Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A) (1989).

137. If a regional court of human rights holds that a national court or

criminal procedure violates a human rights convention to which the country

is a party (as happens, for instance, with regard to courts and procedures

created for the purpose of adjudicating terrorism), Interpol advises the

country that no red notice may be published in case the underlying arrest

warrant has been issued by that court or according to that procedure; such

publication would be in violation of article 2(1) Interpol’s Constitution. Ad-

ditionally, it would run counter to the rule—stemming from article 10

(1)(a)(5) of the Processing Rules, supra note 56—that, as an international

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310 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

ble. In the remaining cases, Interpol does not seem to consist-

ently control this requirement, at least not ex ante.

138

Take the case of Abdul Rasoul Mazraeh, an Iranian citizen

and a recognized refugee in Syria. Despite his refugee status

(perhaps ignored by the General Secretariat at the time of the

Iranian request), Interpol published a red notice against Mr.

Mazraeh, thus inadvertently violating the principle of non-

refoulement. On the basis of that notice, on May 11, 2006 the

Syrian government arrested Mr. Mazraeh and on May 15, 2006

extradited him to Iran. Once in Iran, Mr. Mazraeh was de-

tained for two years without being put on trial and was subject

to various kinds of torture and violence with permanent physi-

cal consequences.

139

Due to the lack of publicity of review proceedings at In-

terpol level,

140

it is difficult to assess how often such problems

occur.

141

This case may well be a particularly unfortunate and

organization, Interpol cannot assist a member country violate its interna-

tional obligations deriving from human rights conventions.

138. On Interpol’s ex post scrutiny, see infra Part IV.A.2.

139. According to the allegations in the report of the UN Special Rap-

porteur:

since his arrest he has not had access to a lawyer and has been

detained in solitary confinement. Mr. Mazraeh is expected to go on

trial in March [2008], however, it remains unclear what charges are

put against him. He was physically and mentally ill-treated while in

detention. As a result, he carries blood in his urine, his liver and

kidneys are not functioning and he lost all of his teeth. Further-

more, he is paralysed because his spine has been damaged.

Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Addendum – Summary of Information, Including In-

dividual Cases, Transmitted to Governments and Replies Received 124-25, U.N.

Doc. A/HRC/7/3/Add.1 (February 19, 2008).

140. The main source of random information, apart from Interpol’s press

releases, is constituted by NGOs reports and the independent press.

141. For the classic reference on the principle of publicity of judicial re-

view proceedings, see Jeremy Bentham, Of Publicity and Privacy, as Applied to

Judicature in General and to the Collection of Evidence in Particular, in 6

ORKS OF

EREMY

ENTHAM

351 (John Bowring ed., 1843). Even with regard to courts,

however, the principle suffers some exceptions. In the United States, for

example, appellate courts do not publish all of their judgments; on the issue,

see Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in

the U.S. Courts, 56

TAN

. L. R

1435 (2004). A different problem—often

occurring in terrorism-related trials—concerns the disclosure of intelligence

documents to the defense. See, e.g., Botmeh v. United Kingdom, App. No.

15187/03, Eur. Ct. H.R. (June 7, 2007).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 311

isolated episode. Nonetheless, it seriously questions the ability

of Interpol’s General Secretariat to adequately investigate all

national requests and, ultimately, to hold its commitment to

protect human rights. It, rather, seems that the only system-

atic check is the formal one, whereas Interpol delves into the

substantive ground of a request only when it is necessary to

preserve its political neutrality or the effectiveness of a no-

tice.

142

If so, the General Secretariat’s ex ante scrutiny is driven

by functional concerns (as those related to compliance with

extradition law and neutrality requirements), rather than by

normative concerns (as the ones more directly related to the

rule of law and to general legality requirements).

2. Ex Post Review

Interpol’s basic norms restrict another mechanism of re-

view, additional to the scrutiny over national requests by the

General Secretariat. This second control essentially takes

place ex post and is performed by an independent body: the

Commission for the control of data files (CCF).

143

The CCF is

composed of five members, “appointed because of their exper-

tise and in such a way as to allow the Commission to carry out

its mission completely independently.”

144

142. This would explain why—as Interpol itself frequently reiterates—“the

issuance or non-issuance of a red notice for any individual cannot be con-

strued as an indication of the strength or weakness of the case against that

individual, which is a matter for the appropriate judicial authorities to de-

cide.” Press Release, Interpol, Interpol statement clarifying its role in case

involving Iranian minister wanted by Argentina (Sept. 4, 2009).

143. A recent amendment to Interpol’s Constitution has introduced an

explicit reference to the CCF and its role. The origin of the CCF goes back

to the Headquarters Agreement signed by France and Interpol on Nov. 3,

1982. The Agreement, which came into force on February 14, 1984, pro-

vided for internal control of Interpol’s archives by an independent body,

rather than by a national supervisory board, as the French government had

initially proposed. Interpol, Headquarters Agreement between the ICPO-IN-

TERPOL and the Government of the French Republic art. 8, (Nov. 3, 1982). The

procedure of review is now disciplined by the Control Rules, supra note 69,

and the Operating Rules of the Commission for the Control of Interpol’s

Files (entered into force Oct. 31, 2008) [hereinafter CCF Operating Rules]. See

ARTHA

, supra note 2, at 92-104.

144. Control Rules, supra note 69, art. 2(a). The five members comprise a

senior judicial or data protection official as chairperson, two senior data pro-

tection experts, a senior electronic data processing expert, and an expert

with recognized international experience in police matters. They are ap-

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312 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

The CCF examines two categories of individual requests,

concerning, respectively: (a) one’s right to access the informa-

tion contained in Interpol’s databases against her;

145

and (b)

the guarantee that the processing of information “conform[s]

to all the relevant rules adopted by the Organization” and

does “not infringe the basic rights of the people con-

cerned.”

146

Both these individual requests are processed

through a highly formalized review procedure.

The wanted person may submit a request to challenge the

validity of a red notice both on formal grounds (e.g. the un-

derlying arrest warrant has expired in the requesting country)

and on substantive ones (e.g. the arrest warrant is an attempt

to politically persecute that individual). When the CCF re-

ceives a request, it transmits to the General Secretariat a copy

of any request calling into question the processing of informa-

tion, and informs the requesting party of the applicable proce-

dure and deadlines.

147

If the CCF considers the request to be

inadmissible, it has to give the reasons.

148

In examining the request, the CCF “may ask the General

Secretariat or any other person or entity for further informa-

tion to be provided within a specified period.”

149

In particu-

lar, the CCF may invite the General Secretariat to carry out a

preliminary study of any requests that call into question the

processing of information.

150

However, an oral hearing of the

pointed by the General Assembly from among the candidates put forward by

member states and selected by the Executive Committee. Id. art. 2(b). In

the exercise of their duties, the members of the CCF “shall neither solicit

nor accept instructions from any persons or bodies, and shall be bound by

professional secrecy.” Id. art. 5(e)(1).

145. Id. art. 9(a). On this internal mechanism of control, more specifi-

cally related to the right to informational self-determination and hence less

relevant to our discussion, see Sch

ondorf-Haubold, supra note 15, at 1745-

47.

146. Id. art. 1(a), 4(a).

147. CCF Operating Rules, supra note 143, art. 6, 7, 12. The decision on the

admissibility of the request has to be taken “as soon as possible, generally

during the session immediately following receipt of the said request.” Id. art.

12(1).

148. Id. art. 12(4); see also id. art. 13(2) (“If the request is rejected in whole

or in part, the Commission shall explain its reasons to the requesting

party.”).

149. Id. art. 17(2).

150. Id. art. 16(1). The General Secretariat itself may submit a reasoned

request to the Commission when it considers that additional details are nec-

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 313

requesting party is only exceptionally allowed.

151

On the basis

of the information collected, the CCF adopts reasoned conclu-

sions and recommendations.

152

The CCF’s ex post review would seem, thus, to fill the main

gaps of the ex ante scrutiny. The conformity with the rule of

law and the legality requirements, though not consistently

checked before the publishing of a red notice, could still be

assessed after issuance at the demand of the fugitive. Put dif-

ferently, Interpol’s legal accountability would rely on a “fire

alarm,” rather than “police patrol,” mechanism.

153

Nonetheless, the impact of CCF’s review on the red notice

system should not be overstated. To begin with, whereas the

Secretariat General may intervene ex officio,

154

the CCF can

only intervene ex parte, on demand of the concerned per-

son.

155

This implies that the remedy is construed as an ex post

review: access to the CCF only happens after the wanted per-

son knows about the red notice, that is, once the notice has

essary from the requesting party. Id. art. 16(3). If the CCF decides to admit

the request, it invites the requesting party to supply the details. Id. art.

16(4).

151. See id. art. 22 (“The Commission shall not meet requesting parties, or

their duly appointed agents or legal representatives, other than in excep-

tional circumstances if, after examining the case, it considers this neces-

sary.”).

152. Id. art. 18(1). Within one month, the CCF also notifies the request-

ing party “that it has carried out the required checks.” Id. art. 18(4). Re-

examination of the request is admitted only under certain conditions. See id.

art. 19(1) (providing that “[a]n application for re-examination of a request

by the Commission may be made by the requesting party only when it is

based on the discovery of a fact which would probably have led to a different

conclusion if that fact had been known at the time the request was

processed.”).

153. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight

Overlooked: Police Patrols versus Fire Alarms, 28

. J. P

. S

165, 166 (1984).

154. An ex-post-facto review may also be conducted by the General Secre-

tariat in light of its ongoing responsibility to ensure compliance with the

rules. Processing Rules, supra note 56, art. 4.1(a)(2). In practice, the General

Secretariat can reopen the case upon its own initiative if it becomes aware of

new relevant facts after the publication of the red notice. In fact, this was

the case in the first round of AMIA described below, in which Interpol can-

celled red notices upon learning of irregularities in the investigation of

Judge Galeano. See infra Part IV.B.

155. The only exception—of limited relevance to our problem—is article

4(d) of the Control Rules, supra note 69, allowing that “The Commission

may also decide to carry out controls in the context of its spot checks.”

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314 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

been already published.

156

Only from that moment, and until

the possible arrest, access to CCF may help to protect the inter-

est of the fugitive not to be apprehended by a foreign po-

lice.

157

After the detention, however, the review may still have

relevance. If the wanted person is released, the cancellation of

the notice contributes to avoiding further arrests while travel-

ling in other states (as happened in the Kazakh case). There-

fore, the control of the CCF is an ex post remedy that is not

foreseen as a relief from detention, but only serves as preven-

tion of further (unjust) arrests.

Within these limits, access to the CCF may eventually pro-

vide scrutiny on the compliance of the notice with the rule of

law and legality requirements. Yet, that scrutiny is different

from a proper judicial review in many respects. Just like the

General Secretariat, the CCF can only check the validity of

charges and not their accuracy: it cannot take over for the judi-

cial authorities by checking or amending charges, given the

necessity to respect national sovereignty. Another important

limitation is that the CCF cannot assess the legal situation in a

member country with a view to giving an opinion on the valid-

ity of an arrest warrant or a legal decision. In addition, the

CCF has merely advisory power: when doubts are raised in re-

lation to a red notice, the CCF may only recommend that the

General Secretariat apply precautionary measures or cancel a

red notice,

158

whereas it is not empowered to process police

information itself. Finally, every member state may challenge

156. There is nothing in Interpol rules that prevents an individual from

submitting an ex ante request to the CCF. The wanted person may issue a

“preventive request” that, if a red notice is asked for, it should not be pub-

lished for the alleged reasons. In such a case, the information provided by

the individual could be taken into account upon reviewing the request (if

submitted) and may lead to the application of the procedure in article

10.1(c) of the Processing Rules, supra note 56: “if there is any doubt about

whether the criteria for processing an item of information are being met,

the General Secretariat shall consult the source of that information, or the

National Central Bureau concerned.” However, in practice, this may only

happen when rumours about a prospective red notice spread out.

157. After the arrest, the personal freedom of the concerned person al-

ready being compromised, the CCF’s intervention loses (part of) its signifi-

cance, because a more effective remedy becomes available, namely the vali-

dation of the arrest and review of the warrant by a domestic judge.

158. These faculties are exercised by the CCF pursuant to article 5(e)(3)-

(4) and article 6(a) of Control Rules, supra note 69.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 315

the General Secretariat’s decision based on the CCF’s advice,

subjecting it to a dispute settlement procedure with the Execu-

tive Committee and the General Assembly as decision-making

bodies.

To sum up, this ex post administrative or quasi-judicial re-

view constitutes an important mechanism of individual appeal

against a red notice. However, it ensures a low level of protec-

tion to personal freedom for three main reasons. First, it

comes late, often after a first arrest and detention. Second, it

is deferential to national sovereignty to the extent that it can-

not question either a domestic appreciation of the charges, or

the human rights record of the concerned country. Third, it is

contingent upon a diplomatic procedure of appeal where po-

litical considerations may easily prevail over legal criteria.

B. The AMIA Case: The Political Control

The AMIA case is perhaps the most controversial of all

Interpol’s jurisprudence. It originates from the 1994 terrorist

bombing of the Jewish community centre (the Asociacion Mu-

tual Israelita de Argentina – AMIA) in Buenos Aires, in which

85 people were killed and 300 more injured. In 2003, Judge

Galeano, the investigating Argentinian magistrate, accused the

government of Iran of directing the bombing. Hence, he is-

sued twelve arrest warrants against Iran’s high officials. In No-

vember 2003, following a request by Argentina, Interpol pub-

lished the corresponding red notices.

As in the Kazakh case, the consistency of the allegations

was highly dubious and, yet, productive of consequences. One

of the warrants signed by Judge Galeano included Hadi

Soleimanpour, Iran’s ambassador to Argentina at the time of

the bombing. On August 21, 2003, Mr. Soleimanpour was ar-

rested in the U.K., put in prison for more than one month and

eventually released by the British authorities, because the evi-

dence presented did not support a prima facie case for extradi-

tion. Nonetheless, Interpol did not cancel the notice.

In September 2004, an Argentinean court found that

Judge Galeano had engaged in “substantial violations of the

rules of due process” and “irregular and illegal actions.” Only

at that point, upon the initiative of the General Secretariat,

did Interpol suspend all twelve red notices and ask both Iran

and Argentina for additional information. The two countries

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316 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

presented their cases to Interpol’s Executive Committee,

which unanimously ordered the cancellation of the red no-

tices. The decision was upheld by the General Assembly in

September 2005.

159

The “first round” of the dispute was, thus,

settled.

The AMIA case resurfaced at the Interpol level one year

later. In October 2006, new Argentine prosecutors formally

accused the government of Iran of involvement in the 1994

attack, and the Hezbollah militia of carrying it out. One

month later, on the request of the Argentinean National Cen-

tral Bureau, Interpol published nine new red notices in con-

nection with the case. The notices concerned eight Iranian

nationals and one Lebanese national, all suspected of involve-

ment in the 1994 strike. The Iranian government criticized

both the investigation conducted in Argentina and the deci-

sion of Interpol’s Executive Committee, dismissed as part of “a

Zionist plot.”

Once again, the two parties could not resolve the matter

bilaterally and a new procedure of dispute resolution began.

This time, however, the outcome was different. In March

2007, the Executive Committee endorsed the conclusions of a

report prepared by the Office of Legal Affairs of Interpol’s

General Secretariat and unanimously decided to authorize the

issuance of six (out of nine) red notices requested by Buenos

Aires.

160

The appeal of Tehran against the decision sus-

pended the publication of the notices until the next meeting

of the General Assembly. On Nov. 7, 2007, the General Assem-

bly upheld the decision of the Executive Committee.

161

As a

result, six red notices started circulating (and are still pend-

ing) in connection to the AMIA case. They concern senior

159. On the “first round” of the AMIA case, see Press release, Interpol,

Argentinean Red Notices for Iranian officials cancelled. Decision upheld by

delegates at INTERPOL General Assembly (Sept. 27, 2005); Larry Rother,

Argentines Criticize Investigation of ‘94 Attack,

N. Y. T

IMES

July 19, 2004, A6.

160. Interpol Press Release, supra note 79 (“After long and careful deliber-

ation of all the information and arguments presented by both parties, the

Executive Committee concluded that the reasons for having the Red Notices

cancelled in 2005 were not present in 2007.”).

161. On the “second round” of the AMIA case, see id. The AMIA case has

received extensive media coverage. See, e.g., Hern

an Cappiello, Acusan a Ir

por el ataque a la AMIA,

ACI

(Oct. 26, 2006), available at http://

www.lanacion.com.ar/nota.asp?nota_id=852740.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 317

Iranian officials, including the current minister of defense

Ahmad Vahidi.

162

This controversial decision—seen by Iran and other mem-

ber states as demonstration of the Western influence on In-

terpol—will hardly be enforced; unless the wanted persons

travel abroad, their countries of residence will never extradite

or process them for the alleged charges. Yet the decision

brought about a worldwide “naming and shaming” effect that

further compromised the image of the Iranian leadership.

163

Conversely, the decision also impaired Interpol impartiality,

especially when contrasted with the General Secretariat’s con-

current dismissal of an Iranian request of red notices against

Israeli officials.

164

It is thus not surprising that Interpol is still

struggling to establish itself as impartial mediator in the AMIA

dispute and to achieve a more satisfactory solution for the par-

ties.

165

162. See David Batty & James Sturcke, Iran appoints bombing suspect as defense

minister,

UARDIAN

Sept. 3, 2009, available at http://www.guardian.co.

uk/world/2009/sep/03/ahmad-vahidi-iran-defence-minister. By contrast,

following the advice of the Secretariat General, Interpol’s Executive Com-

mittee did not authorize the publication of arrest warrants concerning influ-

ential Iranian politicians, such as the former Iranian president Ayatollah Ak-

bar Hashemi Rafsanjani (currently chairman of Iran’s Assembly of Experts),

the former Iranian foreign minister Ali Akbar Velayati (now chief foreign

policy advisor to Iran’s Supreme Leader Ayatollah Ali Khamenei) and for-

mer Ambassador of Iran in Buenos Aires, Hadi Soleimanpour.

163. In September 2009, the Interpol General Secretariat felt the need to

publicly reaffirm that the issuance of a red notice “cannot be construed as an

indication of the strength or weakness of the case,” while at the same time

conceding that “many of Interpol’s member countries consider a Red Notice

a valid request for provisional arrest, especially if they are linked to the re-

questing country via a bilateral extradition treaty.” Interpol Press Release,

supra note 142.

164. Press release, Interpol, Interpol statement on Iranian request for is-

sue of Red Notices

(

March 10, 2009); see also supra Part II.B.

165. See Press Release, Interpol, Interpol Hosts Argentina-Iran Meeting for

Continued Dialogue Over 15-Year-Old AMIA Terrorist Incident (March 12,

2010) (communicating with some discomfort that “during the 10 March

2010 meeting, a practical suggestion was discussed that would designate In-

terpol as the conduit by which information would be exchanged between

both countries. At the conclusion of that meeting, even that suggestion

seemed unacceptable. Frequently, countries prefer to use diplomatic chan-

nels.”).

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318 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

1. Diplomatic Review

When a dispute arises between member states and it can-

not be solved by bilateral consultation, the matter is submitted

in the first instance to the Interpol Executive Committee and

in the second instance to the General Assembly.

166

This dis-

pute settlement mechanism was the rule applied in the AMIA

case: it was the Iranian opposition to the Argentinean request

that led to the first decision of the Executive Committee and

to the final decision of the General Assembly on appeal by Te-

heran. Interpol institutions had to step in and review the

grounds of the Argentinean arrest warrant because of the op-

position by Iran, which ultimately managed to prevent the

publication of a notice for three of its citizens. State opposi-

tion to the issuing of a red notice, thus, proved to be an effec-

tive remedy.

In order to appreciate the importance of this indirect

mechanism of review for the protection of a fundamental

right, a comparison with a similar global regime can be help-

ful. Consider the well-known power of the U.N. Security

Council to name suspected terrorists in a black list and have

their assets seized with the aim of preventing the funding of

terrorist activities. The Sanctions Committee, an auxiliary

body of the U.N. Security Council composed of representatives

of the members of the Security Council, drafts and updates the

list of persons and organizations suspected of funding terrorist

activities (“global black list”). Once a person is included in the

list, all the U.N. members have the duty to freeze the person’s

assets.

167

The obvious difference between the two international ad-

ministrative acts pertains to their legal nature: U.N. measures

are binding on the member states, whereas Interpol red no-

tices are not. Moreover, domestic courts subject to ex post scru-

166. Article 24 of the Processing Rules, supra note 56, concerning the set-

tlement of disputes, provides “[d]isputes that arise between National Central

Bureaus, authorized national institutions, authorized international entities,

or between one of these entities and the General Secretariat in connection

with the application of the present Rules and the implementing rules to

which they refer, should be solved by concerted consultation. If this fails,

the matter may be submitted to the Executive Committee and, if necessary,

to the General Assembly in conformity with the procedure to be estab-

lished.”

167. S.C. Res. 1267, ¶¶ 4, 6, 9-13, U.N. Doc. S/RES/1267 (Oct. 15, 1999).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 319

tiny any Interpol-sanctioned foreign arrest warrant, whereas

the courts are reluctant to review the legality of U.N.-sanc-

tioned asset-freezing measures.

168

In the latter (U.N.) case,

the legal “black hole” is thus more worrisome.

169

However, some substantive analogies should be noted.

First, the Sanctions Committee adopts an “international ad-

ministrative act” that impinges upon a fundamental freedom

of the individual (namely, private property). The formal dif-

ference (U.N. decisions are legally binding while Interpol no-

tices are not) is less relevant in practice because both the U.N.

decisions and the Interpol notices enjoy—albeit to a different

extent—a high degree of compliance.

Second, also in the case of the U.N., the original source of

the international decision is national; the listing process, in

fact, depends on the initiative of a member state, often based

on a judicial decision.

170

Moreover, the relevant state usually

has already included the suspect on a “domestic black list” and

seeks the U.N. approval in order to extend the reach of its ban

worldwide. Here, the similarity of the bottom-up procedure is

evident.

The third analogy directly relates to the mechanism of in-

direct protection. Absent any judicial remedy at the U.N.

level,

171

if objections are raised against the inclusion of a per-

son in the global black list, it is for the U.N. Security Council

to take the final decision. Just like with Interpol dispute settle-

ment, every single state has the power to object, thereby shift-

ing the decision to the main political body.

A fourth analogy concerns private participation. U.N.

rules allow the individual to initiate the diplomatic procedure

168. On this issue, see Antonios Tzanakopoulos, Domestic Court Reactions to

UN Security Council Sanctions, in

HALLENGING

CTS OF

NTERNATIONAL

RGA-

NIZATIONS

EFORE

ATIONAL

OURTS

supra note 15, at

169. This explains the specificity of the problem raised by the Interpol-

U.N. special notices; they are based on U.N. fund-freezing decisions and

contribute to their implementation by spreading the notice through In-

terpol’s network. The point is discussed in Part III.A supra.

170. Albeit an administrative decision is also deemed sufficient to deter-

mine the listing of a suspect terrorist; admittedly, here the U.N. regime

grants less protection to civil liberties than Interpol rules, which require a

judicial involvement for the issuing of an arrest warrant.

171. The competence of the International Court of Justice does not ex-

tend to the decisions of U.N. bodies. See article 36 of the Statute of the

International Court of Justice.

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320 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

of review, in order to obtain delisting, in two ways: indirectly,

by petitioning the government of residence or citizenship to

request a re-examination of the case, or directly, by submitting

a request through a newly established focal point.

172

Yet, the

individual enjoys no right to have the decision reviewed: if the

petitioned government rejects its citizen’s request or if after

one month of the direct petition to the U.N. no member state

recommends delisting, the procedure comes to an end with-

out reconsideration of that position.

173

Similarly, Interpol rules allow the individual to initiate the

diplomatic review by petitioning a government.

174

In addi-

tion, they also provide a full right to have the decision re-

viewed.

175

However, this higher standard of protection has a

limited impact, due to the mere advisory role of the CCF and

to a second-order adjudication of the dispute through the dip-

lomatic procedure.

176

In the latter respect, the U.N. and In-

terpol regimes are similar: the (final) re-examination of the

decision is entrusted to a political body.

172. The focal point for delisting was established in 2006 pursuant to U.N.

Security Council Resolution 1730, U.N. Doc. S/RES/1730 (Dec. 19, 2006).

173. Guidelines of the Committee for the Conduct of Work, S.C. Comm.

established pursuant to resolution 1267 (1999) concerning Al-Qaida and the

Taliban and associated individuals and entities, ¶ 8, U.N. Doc. S/2002/1338,

Annex III, (July 22, 2010); S.C. Res. 1735, U.N. Doc. S/RES/1735 (Dec. 22,

2006).

174. Article 24 of the Processing Rules, supra note 56, refers to “[d]isputes

that arise between National Central Bureaus, authorized national institu-

tions, authorized international entities, or between one of these entities and

the General Secretariat in connection with the application of the present

Rules and the implementing rules to which they refer.” In practice, nothing

in the wording of this provision precludes a state from raising an objection

against a red notice upon request of its named citizen, even though this

provision does not explicitly foresee this possibility.

175. As observed supra note 152, the concerned person may submit a re-

quest of re-examination directly to the CCF, which, in turn, has the duty to

process the request, to give reasons in case of rejection and to inform the

petitioning person about the initiatives assumed on the basis of her request.

176. In Interpol’s regime, the diplomatic procedure overlaps with both

the ex ante scrutiny by the General Secretariat and the ex post review by the

CCF: whatever the decision of those administrative bodies, it can be chal-

lenged by a member state and overturned by a final political decision. This

happens not only when the wanted person is a citizen of the requesting state

(Kazakh case), but also when the wanted person is a citizen of another coun-

try (AMIA case).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 321

The issue is whether this common mechanism of appeal,

being diplomatic in character, is adequate to protect funda-

mental rights.

Interpol’s dispute settlement institutions, the Executive

Committee and the General Assembly, decide by majority vote.

This facilitates the achievement of a solution in case of firm

opposition by a state (or group of states), but also raises the

risk of fomenting an opposition between geopolitical blocs. In

order to de-politicize the issue, Interpol’s political bodies

often ask the Secretariat General for technical (legal) ad-

vice.

177

However, the final decision is quintessentially politi-

cal. In the final stage of the Kazakh case, despite the fact that

the General Secretariat had revoked the notice, the General

Assembly decided otherwise by a thin majority (48 in favour,

38 against, and 23 abstentions), without stating any reason.

178

Secretary-General Ronald K. Noble commented as follows: “In-

terpol is a democratic organisation, and when our members

have expressed their will through the democratic process, the

General Secretariat moves promptly—as in this case—to im-

plement the member states’ decision.”

179

One may wonder how effective is the implementation of a

red notice can be in similar cases, given its non-binding nature

and the open opposition of a considerable number of member

states? More fundamentally: what kind of “democracy” is one

in which the will of the majority (of states) is allowed to trump

the legal guarantees established to protect a fundamental

right?

As these rhetorical questions show,

180

something is miss-

ing in terms of legal accountability. At the administrative

level, the scrutiny is based on a narrow legality review, selec-

177. As mentioned in Part IV.B supra, in the AMIA case the political deci-

sion had been prepared by a report on the issue by the Office of Legal Af-

fairs of the Secretariat General. Due to the high political salience of the case,

seriously threatening Interpol’s political neutrality, it is not surprising that

both the Executive Committee (unanimously) and the General Assembly (by

majority) followed the legal advice of the General Secretariat.

178. Supra Part IV.A.

179. Interpol Press Release, supra note 114.

180. Likely answers would be: (a) that the red notice against Mr.

Kazhegeldin, formally approved within the General Assembly only by 48

states, will be honored by few among Interpol’s 188 members; or (b) that

Interpol’s “democratic process” will reproduce at the international level a

“tyranny of the majority” which is equivalent—when the decision concerns a

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322 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

tively carried out and mainly focusing on extradition law re-

quirements. At the political (appeal) level, even this thin legal

ground is lost: once the issue has entered the dispute settle-

ment engine, a majoritarian logic replaces a proper legal as-

sessment. Ironically enough, this logic also runs counter to

Interpol’s functional needs: the marginalization of legal argu-

ments makes the political game more open, thereby piercing

the veil of Interpol’s neutrality.

C. Any Room for Improvement?

In the global arena, the protection afforded to individuals

against action taken by international institutions is rarely satis-

factory. Two main reasons stand out. First, international regu-

latory regimes are generally established to keep national pow-

ers under control. The power-checking purpose of global

rules is directed toward national administrations, rather than

toward international ones. This is why judicial protection is

rarely guaranteed by those regimes. Second, legal accounta-

bility gaps are difficult to close: absent a global constitution

and an established hierarchy of norms, the fragmented charac-

ter of the global legal sphere does not favor the emergence of

common general principles.

181

On the other hand, there are important signs of develop-

ment. First, it is noticeable that more than 100 extra-national

courts operate in the global arena,

182

and many other surro-

gate mechanisms are available, taking the form of indepen-

basic individual rights—to the majoritarian tyranny encountered by domes-

tic constitutionalism in the last two centuries.

181. See Sabino Cassese, A Global Due Process of Law?, N.Y.U Hauser Collo-

quium on Globalization & Its Discontents (September 13, 2006), available at

http://www.iilj.org/courses/documents/Cassese.AGlobalDueProcess.pdf.

182. See Project on International Courts and Tribunals, The International

Judiciary in Context, http://www.pict-pcti.org/publications/synoptic_chart/

synop_c4.pdf (last visited Dec. 20, 2010); see generally

UVAL

HANY

EGULAT-

ING

URISDICTIONAL

ELATIONS

ETWEEN

ATIONAL AND

NTERNATIONAL

OURTS

(2007) (exploring the issue of jurisdictional overlaps between inter-

national courts and tribunals, which threatens the unity of international

law);

IVIL

OCIETY

, I

NTERNATIONAL

OURTS AND

OMPLIANCE

ODIES

(Tullio

Treves et al. eds., 2004) (analyzing the role of non-state actors in their rela-

tion with international tribunals, courts and compliance mechanisms);

HESTER

ROWN

A C

OMMON

AW OF

NTERNATIONAL

DJUDICATION

(2007)

(observing an increasing commonality in the practice of international courts

to the application of rules concerning issues of procedure and remedies).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 323

dent or quasi-judicial bodies, inspection panels, and compli-

ance committees.

183

Still, despite the absence of general legal

principles, some “common understandings” are emerging:

“the duty to respect human rights and the rule of law; the obli-

gation to inform and to hear interested parties before a deci-

sion is taken . . .; a number of due process obligations; and

substantive duties relating to principles of fairness and reason-

ableness, amongst others.”

184

If one observes the system of Interpol red notices in the

context of this fast-moving picture, the impression is that some

margins for improvement are available. Interpol’s combina-

tion of rules and procedures of ex ante and ex post review is not

sufficient to close relevant gaps in the protection of individual

rights, as the cases discussed above make clear. A final ques-

tion, thus, remains on the floor: is there any conceivable way

to fill those accountability gaps without, at the same time, dis-

rupting the functional pillars—deference to national sover-

eignty and appearance of political neutrality—on which inter-

national police cooperation (and Interpol’s success) is

built?

185

1. The Analytical Framework: Red Notices and Global

Administrative Procedures

The red notice procedure can be construed as a mixed or

composite one, half international and half national.

186

The

183. It is enough to mention two examples: the Inspection Panel of the

World Bank and the Compliance Committee established by the Aarhus Con-

vention. On the former, see Enrique R. Carrasco & Alison K. Guernsey, The

World Bank’s Inspection Panel: Promoting True Accountability through Arbitration,

ORNELL

’

L.J.

577 (2008); Mariarita Circi, The World Bank Inspection

Panel: Is It Really Effective?, 6

LOBAL

URIST

DVANCES

(2006); Jonathan A.

Fox, The World Bank Inspection Panel: Lessons from the First Five Years, 6

LOBAL

OVERNANCE

279 (2000). On the latter, see Marco Macchia, Legality: The Aar-

hus Convention and the Compliance Committee, in

LOBAL

DMINISTRATIVE

ASES

, M

ATERIALS

, I

SSUES

71 (Sabino Cassese et al. eds., 2008); Svitlana

Kravchenko, The Aarhus Convention and Innovations in Compliance with Multi-

lateral Environmental Agreements, 18

OLO

. J. I

’

NVTL

. L. & P

’

1 (2007).

184. Cassese, supra note 8, at 767.

185. On the tension between functional and normative concerns at the

Interpol level, see supra Part II.B.

186. On mixed administrative procedures at global level, see Cassese,

supra note 11, at 680-84; Giacinto della Cananea, Beyond the State: The Europe-

anization and Globalization of Procedural Administrative Law, 9

. P

. L.

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324 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

first phase is bottom-up: it begins with a state request to pub-

lish a red notice, proceeds with the examination of the request

by Interpol and results in the issuing of a red notice. The sec-

ond stage of the procedure is top-down: once the notice is

published, the relevant national office processes the “soft” in-

ternational act and decides whether to turn it into a binding

(thus “hard”) administrative act. Despite the lack of a compre-

hensive discipline (the top-down stage is disciplined at the do-

mestic level), this procedure is unitary: it aims to add transna-

tional effects to an arrest warrant that would otherwise only

produce effects within the borders of the issuing country.

This modeling exercise highlights the way administrative

discretion is allocated along the procedure. In principle, In-

terpol decides as to the virtual global reach of a domestic war-

rant, while national authorities decide as to the actual domes-

tic effects of that warrant. In practice, if a national central bu-

reau routinely gives automatic recognition to Interpol-

sponsored warrants (as it is often the case), then the virtual

and the actual dimensions collapse and conflate: the national

recognition becomes a mere formality. As a result, the discre-

tionary power—in principle distributed between Interpol and

the national central bureau along the virtual/actual divide—in

effect is shifted to the international level and accumulated in

the hands of Interpol. The domestic phase of the procedure

amounts to a rubber-stamp exercise of Interpol decisions. As a

result, the discretionary power to weigh the global interest to

security (pursued by means of police cooperation) against the

individual right to personal freedom rests with Interpol. It is

true that Interpol’s decisions are subject to scrutiny at the do-

mestic level. Yet, this is not sufficient. As noticed in the Ka-

zakh case, judicial review arrives too late, when the fugitive has

already been deprived of personal freedom and spent days or

weeks in unpleasant and possibly dangerous prisons.

Other arguments can be added. A citizen may accept be-

ing arrested and temporarily detained on the basis of an ill-

founded charge if the warrant is issued in conformity with the

rules and procedures of her own domestic legal order: after all,

those rules and procedures have been defined by political rep-

(2005); Manuela Veronelli, Shared Powers: Global and National Proceedings

under the International Patent Cooperation Treaty, in

LOBAL

DMINISTRATIVE

: C

ASES

, M

ATERIALS

, I

SSUES

supra note 183, at 50.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 325

resentatives who she has contributed to electing and who are

accountable to her. It is an altogether different issue for that

citizen to accept the same restrictions on personal freedom

when they are imposed by a warrant of a foreign authority,

especially if the issuing state does not respect the basic princi-

ples of democracy and rule of law. Would Socrates have sub-

mitted to drinking the hemlock, had it been ordered by a non-

Athenian jury?

The issue exhibits an institutional side. Can democratic

states be content with a global governance system that allows

such a practice, and indeed strengthens it, without providing

for adequate guarantees? Is it acceptable that an international

regime allows domestic authorities to pursue legally questiona-

ble practices or, worse, to infringe upon “the most fundamen-

tal of all rights recognised in the European Convention and

the US Constitution”

187

without establishing specific counter-

measures? By accepting this accountability gap in the case of

Interpol, liberal democracies would undermine their commit-

ment to the rule of law in the name of effective police cooper-

ation. The governance ethos—”what counts is to apprehend

fugitives and if sometimes we arrest and detain them for wrong

reasons, pace!”—would prevail, and a further silent shift in the

balance between security and freedom would occur.

188

But

perhaps such a shift is unnecessary.

187. This is how Sottiaux refers to personal liberty.

OTTIAUX

supra note

40, at 197; see also De Wilde v. Belgium, 12 Eur. Ct. H.R. (ser. A) ¶ 65 (1971)

(qualifying freedom from arbitrary arrest as a cornerstone of democratic so-

ciety).

188. The “security v. liberty” debate has been revived by Western govern-

ments in their use of emergency powers in the fight against international

terrorism after September 11, 2001. Among the most relevant contributions

with a prevalent American focus, see

RUCE

CKERMAN

EFORE THE

EXT

TTACK

: P

RESERVING

IBERTIES IN AN

GE OF

ERRORISM

(2006);

REN

ROSS

IONNUALA

AIN

AW IN

IMES OF

RISIS

: E

MERGENCY

OWERS IN

HE-

ORY AND

RACTICE

(2006);

AVID

YZENHAUS

ONSTITUTION OF

EGALITY IN A

IME OF

MERGENCY

(2006);

RIC

A. P

OSNER

& A

DRIAN

ERMEULE

ERROR IN THE

ALANCE

: S

ECURITY

, L

IBERTY

AND THE

OURTS

(2007);

ANIEL

OECKLI

UMAN

IGHTS AND

DISCRIMINATION IN THE

‘W

AR ON

ERROR

’

(2008). For a discussion of the national and regional ini-

tiatives on the opposite side of the Atlantic, see Jan Wouters & Frederik

Naert, Of Arrest Warrants, Terrorist Offences and Extradition Deals: An Appraisal

of the EU’s Main Criminal Law Measures Against Terrorism After ‘11 September,’ 41

OMMON

. L. R

909 (2004); Mar Jimeno-Bulnes, After September 11th:

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326 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

2. In Search of a Balance: Due Process in Context

A first implication of the above mentioned construction is

plain: in order to check the discretionary power enjoyed by

Interpol, it is necessary to subject it to the rule of law. Princi-

ples of due process, like the right to a hearing, the duty to

provide a reasoned decision, the duty to disclose all relevant

information and the right to judicial review, should be incor-

porated. On this point, public law approaches would largely

converge. Divergence may concern the appropriate instru-

ments to achieve the result. From a global administrative law

perspective, two hypothetical models are available: a “central-

ized” one, in which all the mentioned safeguards are estab-

lished at the Interpol level; and a “decentralized” one, in

which due process guarantees are, instead, granted at the do-

mestic level.

189

The “centralized” model, if properly established (with the

formalization of red notices as international arrest warrants,

adequate procedural guarantees and effective judicial review),

perhaps would be the optimal solution from a legal stand-

point: the discretionary power would be checked at the level

where it is exercised, without running into the risk of state fail-

ures. This is the “hard” legal path that Interpol is willing to

undertake: an international convention on red notices.

190

Yet,

this seems to be politically unfeasible, given the high level of

distance and distrust among member states on the issue. Is it

realistic to imagine a “global arrest warrant” along the lines of

the European experiment? The decentralized model, by con-

The Fight Against Terrorism in National and European Law, 10

. L.J.

235

(2004);

ECURITY VERSUS

USTICE

supra note 40.

189. This would be a direct implication of the GAL distinction between

“top-down” and “bottom-up” mechanisms of accountability, discussed in Part

I.3 supra. Alternatively, the Interpol red notice system may be conceptualized

as a strategy for a global institution to subject the domestic issuing of an

arrest warrant to a loose international control, with the consequence of ac-

cruing the “external” democratic accountability of national decisions. This

theoretical perspective is developed, in general terms, by Stefano Battini in

The Globalization of Public Law, 18

. R

. P

. L.

563 (2006).

190. Interpol Executive Committee recently proposed to “[b]egin a pro-

cess to draw up an international convention on red notices: For interna-

tional status to be attributed to red notices, and for States to accept that

notices hold them to obligations, it is necessary to proceed through a con-

vention and to have an international legal instrument adopted.” Interpol,

Report No. 13 to the General Assembly, supra note 81, at 3.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 327

trast, represents the status quo: a situation that is inadequate

from a legal standpoint (as emerged in the discussion of the

Kazakh case) and that is becoming untenable also from a func-

tional standpoint (as the mentioned AMIA case illustrates).

Moreover, in some respects, the choice between centrali-

zation and decentralization is not available at all. The right to

a hearing, for instance, cannot be granted to a suspect before

his material apprehension, because the “surprise effect” has to

be preserved. Therefore, there is no option but to postpone

the hearing of the suspect after the arrest, with all the conse-

quent guarantees stemming from domestic constitutional

guarantees and the application of criminal procedures. This is

the solution recommended to the E.U. institutions by the Eu-

ropean Court of Justice in order to structure a fairer process of

implementation of U.N. fund-freezing measures.

191

However,

in the case of red notices, this innovation would have little ef-

fect, as this guarantee is already provided at domestic level.

192

Nonetheless, some “softer” measures may be considered

as a politically feasible and legally adequate way to fill the ac-

countability gaps so far detected.

(a) A first, thin, addition would consist in setting up an

Interpol standard to make clear that it is a precise duty of the

recipient member state to hold a hearing for the arrestee

within a reasonable time limit, in order to decide whether to

surrender the arrested person to the requesting state.

193

This

standard would be politically acceptable, being non-binding

and consistent with rule of law standards of all liberal democ-

racies.

191. The fact that the European Commission has not yet properly put it in

place—as the recent ruling of the European Tribunal of First Instance

makes clear, see supra note 74—does not seriously question the appropriate-

ness of the solution.

192. I refer to the validation of the arrest and review of the warrant by a

domestic judge. See also supra Part IV.A.2.

193. For example, under the European arrest warrant regime, “the final

decision on the execution of the European arrest warrant should be taken

within a period of 60 days after the arrest of the requested person” and that

“where in specific cases the European arrest warrant cannot be executed

within the time limits . . . the executing judicial authority shall immediately

inform the issuing judicial authority thereof, giving the reasons for the delay.

In such case, the time limits may be extended by a further 30 days.” EAW

Framework Decision, supra note 85, art. 17(3)-(4).

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328 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

(b) As for the requirement of reason-giving, one possibil-

ity would be to introduce it directly at the Interpol level—at

least when the notice is issued after the settlement of a dispute

(as in the AMIA case). This requirement would bring about a

legitimacy-enhancing effect: if a notice is based on openly

stated and detailed reasons, it would be easier for member

states to process the request (simplification effect) and harder

for them not to honor the notice (compliance-enhancing ef-

fect). However, most, if not all, the reasons stated in the red

notice could only be based on reasons provided from national

investigating authorities. Therefore, national requests too

could or should be subjected to the same duty, by means of an

Interpol standard. Treaties on extradition could be used as

guidelines. These treaties, in fact, require the requesting party

to provide a more or less detailed statement of the offences for

which extradition or the provisional arrest is requested.

194

This, in turn, would strengthen the legitimacy of the process

and enable peer accountability among members.

close relevant information. In the field of police cooperation

the troubling nature of such a duty cannot be overstated.

Some states restrict information on certain criminal matters

(terrorism, for instance), while others are simply unwilling to

share most of their information with the rest of the (police)

world. Interpol rules already provide the possibility for a

member to circulate warrants or other information only to cer-

tain other members.

195

However, if members do not share in-

formation, not only does Interpol’s duty to state reasons lose

significance, but also the validation of the arrest in the country

where the apprehension happened becomes impossible.

196

194. For an example, see European Convention on Extradition, supra

note 134, art. 12(2)(b) (imposing on the requesting party the duty to set out

“as accurately as possible” the time and place of commission of the offence

and its legal descriptions); Inter-American Convention on Extradition art.

11, Feb. 25, 1981, 1752 U.N.T.S. 195 (providing a less demanding require-

ment as to the content of the documents supporting a request for extradi-

tion).

195. Processing Rules, supra note 56, art. 8(a).

196. Doubtless, these standards would make the procedure to request a

red notice much more demanding for member states. Public prosecutors

would not be happy to know that they have to specify the reasons for a war-

rant and even less happy if they have to disclose some evidence. They could

rather decide to rely on existing bilateral and multilateral treaties. Yet, in so

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 329

Therefore, one possibility is to set a standard requiring the re-

questing states to share all the information that justifies the

warrant not only with the requested party (the state where the

apprehension happens), but also with Interpol (as a general

rule or at least as an exceptional duty, when disputes between

member states arise). In the latter case, the relevant informa-

tion should be sent promptly, so as to allow a speedy validation

of the arrest.

197

(d) Finally, another alternative is increased judicial re-

view. As mentioned, it is already available at national level, in

the form of validation of the arrest. Nonetheless, the Kazakh

case tells us that it comes too late, after the infringement of a

fundamental freedom has already happened. Moreover, the

doing, they would lose the advantage of using Interpol’s unique communica-

tion system, having to contact every state individually, and would also lose

the advantage stemming from the de facto quasi-universal recognition of In-

terpol-sponsored notices.

197. Admittedly, it is in the interest of the requesting state to promptly

send sufficient evidence for validation, because otherwise the suspect can be

freed after the deadline for preventive detention expires. If this happens,

though, international police cooperation suffers as well: police and judicial

resources of a foreign system would have been wasted and arguably the re-

ciprocal trust between the two jurisdictions involved would be jeopardized.

It is, thus, advisable to adopt a rule similar to article 16(4) of the European

Convention on Extradition, supra note 134, which states: “[p]rovisional ar-

rest may be terminated if, within a period of 18 days after arrest, the re-

quested Party has not received the request for extradition and the docu-

ments mentioned in Article 12. It shall not, in any event, exceed 40 days

from the date of such arrest.” By contrast, sixty days is the span of time

allowed by Article 14(3) of the Inter-American Convention on Extradition,

supra note 194. More generally, article 5(1)(f) of the European Convention

on Human Rights states: “No one shall be deprived of his liberty save in the

[case of] the lawful arrest or detention of a person . . . against whom action

is being taken with a view to deportation or extradition.” European Conven-

tion on Human Rights art. 5(1)(f), Nov. 4. 1950, 213 U.N.T.S. 222. Despite

the fact that this provision does not require the parties to provide a time

limit for the detention pending extradition proceedings, the European

Court of Human Rights has acknowledged the right to an expedient proce-

dure, see Chahal v. United Kingdom, 22 Eur. Ct. H.R. ¶ 113 (1996); however,

while enforcing the right, the European Court has held that four months

does not amount to an excessively long period of custody in view of extradi-

tion, when there is no reason to believe that the authorities acted without

due diligence, see Bordovskiy v. Russia, Eur. Ct. H.R. App. No. 49491/99, ¶

50 (2005). On the rights of the individual during extradition in the Euro-

pean context, see generally

OUNCIL OF

. P

UBL

’

, E

XTRADITION

: E

URO-

PEAN

TANDARDS

97-132 (2006).

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330 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

AMIA case shows that Interpol adjudicates interstate disputes

over the issuance of red notices, but that Interpol’s institutions

are ill-suited to play such an arbitral role. The political sali-

ence of those disputes threatens the imperative of political

neutrality, especially since terrorism-related crimes have been

included in Interpol’s field of action. The establishment of an

international court (or the extension of the ICJ mandate over

such issues), though, would trigger a process of “legalization”

that not only conflicts with the governance ethos of the organi-

zation, but would also be perceived as an attempt against na-

tional sovereignty in police and criminal matters.

A possible compromise would be to strengthen the CCF

or to establish a new independent administrative body—a

panel of independent legal experts—with consultative powers.

The French model of justice r

etenue, applied to the Conseil d’

Etat

from 1800 to 1872, could be a source of inspiration. By that

time, the Conseil d’

Etat was not recognized as a judicial body,

but rather a consultative body of the government on adminis-

trative controversies. Nonetheless, it exercised a judicial func-

tion, its advice being always followed by the government.

198

Following this model, the Interpol panel would intervene

not only at the request of the wanted person,

199

but also ex

officio in the dispute settlement stage. At that level, the inde-

pendent body would not adjudicate disputes, but rather advise

Interpol’s main bodies once a dispute arose, providing them

with opinions based on legal grounds (of course, this would

imply the acceptance of the duty of disclosure, as above de-

fined).

A further complementary step would be the creation of a

network of national independent units as decentralized arms

of the central independent panel. The case of the Europol’s

Joint Supervisory Body could be taken as a model. It is an in-

dependent body that has the task of reviewing “the activities of

Europol in order to ensure that the rights of the individual are

not violated by the storage, processing and utilization of the

198. See Vincent Wright, La r

eorganisation du Conseil d’Etat en 1872, 25

TUDES ET DOCUMENTS DU

ONSEIL D

’E

TAT

21 (1972);

F. B

URDEAU

, H

ISTOIRE

DU DROIT ADMINISTRATIF

(

DE LA

EVOLUTION AU D

EBUT DES ANN

EES

1970)

(1995).

199. As is already the case when the CCF is asked to process individual

requests according to articles 1(a) and 4(a) of the Control Rules, supra note

69; see also supra Part IV.A.2.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 331

data held by Europol.”

200

This body is the apex of a network

of national supervisory bodies; just like the joint supervisory

body monitors the activities of the European central offices of

Europol, the national supervisory bodies are established to

check the activities of Europol’s national units.

201

Moreover,

the joint supervisory body consults and closely cooperates with

its national “arms” (the national supervisory bodies) when an

individual requests information on whether Europol and its

national units have processed her personal data in a lawful and

accurate manner.

202

If a similar decentralized network of national supervisory

bodies would be established under the coordination of the

CCF or any other independent supervisory body, such a net-

work would be able to control the processing of notices and

information by Interpol and the national bureaus, to report

on violations to the Secretary-General, and to process individ-

ual requests concerning data collection, storage, processing,

and use by Interpol.

203

A similar arrangement not only would

meet the main concerns related to the right of informational

self-determination, but would also be beneficial to the recipro-

cal trust between members.

The mentioned proposals inevitably involve a trade-off.

In particular, the imperative of national police autonomy and

self-regulation would be eroded by new Interpol standards, al-

beit to a limited extent. In any case, that loss would be at least

partially compensated by some likely potential gains: a more

widespread acceptance of red notices by member states, the

possible expansion of Interpol’s intelligence capacities, and

the development of a common regulatory platform for a more

effective coordination with the heavily legalized Europol and

Schengen settings would all become more feasible achieve-

ments.

200.

OUNCIL

ECISION

STABLISHING THE

UROPEAN

OLICE

FFICE

, art.

3h(1), April 6, 2009

[

HEREINAFTER

UROPOL

ONVENTION

201. According to the

UROPOL

ONVENTION

, each national supervisory

body has the task “to monitor independently, in accordance with its respec-

tive national law, the permissibility of the input, the retrieval and any com-

munication to Europol of personal data by the Member State concerned and

to examine whether this violates the rights of the data subject.” Id. art. H33.

202. On the rights of access and claim granted to the individuals whose

personal data are at stake, see id. arts. H30(7), 33(2), 34(h).

203. Id. art. H34.

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332 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

V. G

LOBAL

EGAL

TUDIES AND

“S

OFT

” P

OWERS

HREE

ONCLUSIONS

One of the distinguishing features of the global arena is

the absence of a clear-cut distinction between legal and non-

legal prescription and the blurring between binding (or

“hard”) and non-binding (or “soft”) law. Part II expands on

the tension between functional and normative concerns as one

possible source of that blurring. In Part III, Interpol red no-

tices are qualified as manifestation of an international admin-

istrative power that is basically “soft” (it being non-binding),

but that, under certain conditions, becomes “hard” (borrow-

ing its legal force from extradition law). In Part IV, I analyzed

the mechanisms of legal accountability established at Interpol

level, detect the main gaps and propose how to (partially) fill

them. The mentioned proposals are based on a combination

of two different techniques: one is the establishment of princi-

ples of due process at international level; the other is the set-

ting of global standards that limit national administrative dis-

cretion when its exercise determines ultra-national effects.

204

The same goal—legal accountability—can be pursued along

different and mutually sustaining paths.

There is a distance between such pragmatic proposals and

the more traditional alternatives, namely the full legalization

of Interpol (to begin with, the adoption of an international

convention on red notices) and the mechanical translation to

the global level of national consolidated tools of legal account-

ability (first and foremost, independent judicial review of ad-

ministrative action). Some public law scholars may consider

that distance as a betrayal of the integrity of the rule of law or,

at best, as “administrative law light.”

205

It seems, nonetheless,

consistent with (a) the initial commitment to take the “soft-

ness” of Interpol powers seriously, (b) the need to accommo-

date normative legal concerns with the functional imperatives

on which international police cooperation is built, and (c) the

perception that legal accountability is only one of the many

204. See generally Sabino Cassese, Global Standards for National Administrative

Procedure, 68

& C

ONTEMP

. P

ROBS

109 (2005).

205. Stewart, U.S. Administrative Law, supra note 49, at 104-06.

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 333

mechanisms of accountability that can be applied to global re-

gimes.

206

I draw from this case study three general insights. The

first one concerns the relevance of “soft” powers for the legal

analysis of global governance. As the uncomfortable case of

Interpol red notices shows, “soft” powers and “soft” law iden-

tify a grey area where the functional goals of global govern-

ance and the normative concerns of public law more harshly

compete. The scholarly neglect of similar issues is not benign:

far from easing the tension between governance and legal per-

spectives, it exacerbates it and reveals the insufficiency of ex-

isting public law paradigms.

Secondly, the existence of “soft” powers entails a basic

question: “is a formally binding commitment to obey a rule the

only means of producing rule-conforming behavior?”

207

This

answer cannot be properly given from a mainstream positivist

standpoint.

208

In that traditional view, if there is no “hard” law

that creates a binding public power, then it is impossible to

translate normative concerns, if any, into meaningful argu-

ments of legality; here is where legal forms are traditionally

perceived as useless. By contrast, an international body that

exerts formally binding unilateral powers is the kingdom to

put under the law’s empire, both to strengthen the legitimacy

206. Grant & Keohane, supra note 48, at 35-37 (detecting six mechanisms

of accountability other than law, namely hierarchical, supervisory, fiscal,

market, peer and public reputational accountability).

207. Cassese, supra note 8, at 765.

208. By mainstream positivism I mean voluntaristic or constrained theo-

ries of law, which emphasize that law is what law-makers want it to be and,

hence, that it implies a connection with sovereignty and command. This

Hobbesian or Austinian approach, transposed to the international level

(where it is mostly associated with Jellinek and Triepel). Identifies the will of

the lawmakers (the states) with “hard” international law, as qualified in arti-

cle 38 of the International Court of Justice statute, June 26, 1945, 33

U.N.T.S. 993

In this perspective, “soft law” is neglected: either it is dis-

missed as mere “fait juridique,” d’Aspremont, supra note 107, at 1080, or, at

best, acknowledged as undesirable, see Prosper Weil, Towards Relative Norma-

tivity in International Law?, 77

. J. I

’

413, 414 (1983); Jan Klabbers,

The Undesirability of Soft Law, 67

ORDIC

J. I

’

381 (1998). For an over-

view of informal international law, including the motivations for and conse-

quences of its use, see Eyal Benvenisti, ‘Coalitions of the Willing’ and the Evolu-

tion of Informal International Law, in

OALITIONS OF THE

ILLING

: A

VANT

GARDE OR

HREAT

1 (Christian Callies, Georg Nolte & Peter-Tobias Stoll

eds., 2006).

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334 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

of the ultra-state public authority and to establish a minimum

standard of protection for individuals. For those positivists, to

skip the theoretical quicksand of “soft” law is easier, but for

global scholars this kind of legal positivism does not hold,

209

since it does not serve the purpose of studying heterogeneous

global regimes and the development of common principles

and rules (soft ones included).

210

The third issue is if and how to “legalize” a “soft” power

once we acknowledge its legal relevance. What if we face a

power that is non-binding, does not fit into any classic category

of public law and, yet, ultimately affects individual rights: how

do we “legalize” such an atypical manifestation of public au-

thority? How appropriate would it be to put it under the reach

of the rule of law? Isn’t this a case where the legal discourse

hits its own borders and should defer to competing functional

rationales?

In addressing this issue, global administrative law and the

competing public international law approach largely con-

verge.

211

Both maintain that public law can play—at least in

part and with some adaptations—its traditional dual role of

209. This does not imply an integral rejection of legal positivism by global

administrative law. See Kingsbury, supra note 8, at 27-31 (proposing a “social

fact” conception of law as an extension of Hartian positivism, assumed as

compatible with global administrative law, in opposition to traditional

(Hobbesian-Austinian) positivism); see also Benedict Kingsbury, International

Law as Inter-Public Law, in

ORAL

NIVERSALISM AND

LURALISM

167, 190

(Henry S. Richardson & Melissa S. Williams eds., 2009) (describing how the

emerging field of global administrative law is one example of inter-public

law in operation). For a discussion of Hart’s concept of law in an interna-

tional law perspective, see Patrick Capps, Methodological Positivism in Law and

International Law, in

, M

ORALITY

AND

EGAL

OSITIVISM

9 (Kenneth E.

Himma ed., 2004).

210. See Cassese, supra note 8, at 762 (observing, with regard to global (ad-

ministrative) law studies, that “a scholarly endeavor of this sort has not been

undertaken since the 17th century. Indeed, ever since the attack from legal

positivism led to the collapse of natural law approaches to the discipline, law

has been conceived of as exclusively the product of nation-states, with inter-

national law conceptualized mainly on the basis of ‘contractual’ relations

among them.”).

211. On public international law and global governance, see generally

Bogdandy et al., supra note 8; Eberhard Schmidt-Assman, The International-

ization of Administrative Relations as a Challenge for Administrative Law Scholar-

ship, 9

. L.J.

2061 (2008);

XERCISE OF

UBLIC

UTHORITY BY

NTER-

NATIONAL

NSTITUTIONS

supra note 8 (collecting essays and case-studies con-

ducted within this theoretical framework).

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2011] GLOBAL ADMINISTRATIVE LAW MEETS “SOFT” POWERS 335

enabling and limiting public power also when it is “soft” and

international. Both claim, in fact, that a relative concept of

normativity is necessary to overcome the stark dichotomy of

binding/non-binding and to fully appreciate the legal salience

of “soft” instruments of law.

212

Moreover, both reject the posi-

tivist caveat not to promote “legal spillovers,” that is, not to

conflate legal and non-legal discourses. Here is where positiv-

ism still poses a major challenge to global studies. Yet, global

scholars contend that this concern is misplaced, especially

(but not exclusively) when it is advanced in the global

arena.

213

The main effort should be, rather, devoted to elabo-

rating strategies of “legalization” or “gap-filling” that are con-

sistent with the specific legal salience of the public power at

stake.

214

In conclusion—and here is the third insight I draw from

this case study—the answer to the previous question (“how to

treat soft powers”) depends on the kind of legal lenses em-

ployed. Those who shape their quest for public law at the in-

ternational level in a positivist fashion risk either overlooking

relevant “soft” powers (because they lack a legal basis), or, by

contrast, armoring them into an ill-suited legal cage (com-

manded by the imperative to re-establish accountability to

states). By contrast, global administrative law seems well-

equipped both to capture the various degrees of “softness”

pertaining to global powers, and to sew legal clothes that more

appropriately fit informal global institutions and powers (by

212. Goldmann, supra note 12; see also Kingsbury, supra note 8, at 27

(“Whereas positivist thought within a unified legal system has focused on the

binary validity/invalidity, or binding/non-binding, the absence of a very or-

ganized hierarchy of norms and institutions in global governance, and the

dearth of institutions with authority and power to determine such questions

in most cases, means the actual issues in global administrative law often go to

the weight to be given to a norm or decision.”).

213. Objections may be condensed in two questions: (a) does the legal

discourse have fixed or clearly defined boundaries, so that no interplay with

competing wisdoms is allowed and indeed beneficial? (b) is it really neces-

sary (and meaningful) to prevent “legal spillovers” in a global arena where

political dynamics systematically interferes with legal ones and where, as a

result, the two spheres largely overlap?

214. See Stewart, U.S. Administrative Law, supra note 49, at 76-88 (distin-

guishing between top-down and bottom-up mechanisms of legal accountabil-

ity); Goldmann, supra note 12, at 1879-1905 (advancing a classification of

“standard instruments of international public authority” and detecting some

common elements of their legal regimes).

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336 INTERNATIONAL LAW AND POLITICS [Vol. 43:263

squaring functional needs with the protection of individual

rights). In so doing, global administrative law, compared to

more ambitious approaches,

215

seems to perform a modest,

while potentially not less effective, role in promoting the rule

of law beyond the state.

215. Bogdandy et al., supra note 8, at 1390-95, describe their methodology

as a combination of three approaches: constitutional law, administrative law

and institutional international law. In my view, the main divergence be-

tween this approach and global administrative law concerns the different

emphasis put on the role of states. Global administrative law scholars openly

reject the “state-as-a-unit” paradigm and tend to conceive the global context

as an arena where states compete with other private and public actors. See

Kingsbury et al., supra note 11; Cassese, supra note 8; Nico Krisch & Benedict

Kingsbury, Introduction: Global Governance and Global Administrative Law in the

International Legal Order, 17

. J. I

’

1, 10 (2006) (all authors

stressing the tension between global administrative law and the classical

models of consent-based inter-state international law). By contrast, propo-

nents of public international law defend a state-centered approach both at

the terminological and conceptual levels. As for terminology, the traditional

word “international” is preferred to the word “global,” which is intended to

highlight the vanishing of a sharp separation between the domestic and in-

ternational legal orders. See Cassese, supra note 11, at 684. At the concep-

tual level, a state-centric vision surfaces where global governance is con-

ceived “as peaceful cooperation between polities, be they states or regional

federal units, a cooperation which is mediated by global institutions. . ..

These are propelled by national governments . . . [and] would in turn be

conscious of their largely state-mediated (and thus limited) resources of

democratic legitimacy and respectful of the diversity of their constituent

polities.” Bogdandy et al., supra note 8, at 1400; see also Schmidt-Assman,

supra note 211, at 2066-69.