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The Creation of a Review Mechanism for the UN Convention Against Transnational Organized Crime and Its Protocols

Published online by Cambridge University Press:  17 January 2020

Cecily Rose
Cecily Rose*
Affiliation:
Assistant Professor, Grotius Centre for International Legal Studies, Leiden University.
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Extract

In November 2000, the United Nations General Assembly adopted the United Nations Convention Against Transnational Organized Crime (UNTOC or Convention) and its three protocols on human trafficking, migrant smuggling, and firearms. These instruments are the product of three years of diplomatic negotiations, and they represent a substantial contribution to international lawmaking in the area of transnational criminal law. UNTOC has attracted almost universal participation, with 190 states parties at present. Nearly two decades after the adoption of these instruments, however, remarkably little is known about whether states parties have implemented UNTOC and its protocols in their national legislation, whether they enforce such legislation, and whether they make use of UNTOC's provisions concerning international cooperation (e.g., extradition and mutual legal assistance). In other words, the influence of these instruments in practice remains largely unknown.

Type
Essay
Information
American Journal of International Law , Volume 114 , Issue 1 , January 2020 , pp. 51 - 67
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, Nov. 15, 2000, 2225 UNTS 209 (entered into force Sept. 29, 2003) [hereinafter UNTOC].

2 Protocol to Prevent, Suppress, Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2237 UNTS 319 (entered into force Dec. 25, 2003) [hereinafter Trafficking Protocol]; Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime, Nov. 15, 2000, 2241 UNTS 507 (entered into force Jan. 28, 2004) [hereinafter Smuggling Protocol]; Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, Supplementing the United Nations Convention Against Transnational Organized Crime, May 31, 2001, 2326 UNTS 208 (entered into force June 3, 2005) [hereinafter Firearms Protocol].

3 Ratification levels for the Protocols are lower and varied. The Trafficking Protocol has 174 states parties, the Smuggling Protocol has 149 states parties, and the Firearms Protocol has 118 states parties. For an analysis of the ratification level of the Smuggling Protocol, see Andreas Schloenhardt & Hamish MacDonald, Barriers to Ratification of the United Nations Protocol Against the Smuggling of Migrants, 7 Asian J. Int'l L. 13 (2017).

4 Boister, Neil, The Cooperation Provisions of the UN Convention Against Transnational Organised Crime: A “Toolbox” Rarely Used?, 16 Int'l Crim. L. Rev. 39 (2016)Google Scholar.

5 United Nations Convention Against Corruption, Oct. 31, 2003, 2349 UNTS 41 (entered into force Dec. 14, 2005) [hereinafter UNCAC].

6 UNTOC, supra note 1, Article 2(a) defines “organized criminal group” as “a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.” UNTOC Article 2(c) defines a “structured group” as a “group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.”

7 Neil Boister, An Introduction to Transnational Criminal Law 132–34 (2018).

8 Id.

9 Id.

10 Trafficking Protocol, supra note 2, Article 3(a) defines “trafficking in persons” as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

11 Smuggling Protocol, supra note 2, Article 3(a) defines the “smuggling of migrants” as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.”

12 Firearms Protocol, supra note 2, Art. 3(a)–(e).

13 Trafficking Protocol, supra note 2, Art. 4; Smuggling Protocol, supra note 2, Art. 4; Firearms Protocol, supra note 2, Art 4(1); UNTOC, supra note 1, Arts. 2(a), 3(2).

14 Trafficking Protocol, supra note 2, Art. 7(1).

15 UNTOC, supra note 1, Article 32(1) provides that “A Conference of the Parties to the Convention is hereby established to improve the capacity of States Parties to combat transnational organized crime and to promote and review the implementation of this Convention.”

16 UNTOC, supra note 1, Article 32(4) provides that “the Conference of the Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing this Convention and the difficulties encountered by them in doing so through information provided by them and through such supplemental review mechanisms as may be established by the Conference of the Parties.”

17 UNODC, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, at 269 n. 2, 270 n. 3, 274 n. 10, UN Sales No. E.06.V.5 (2006).

18 Id.

19 Id. at 269 n. 2.

20 Id. at 277.

21 UNODC, Rules of Procedure for the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Rule 3 (2015).

22 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Development of Tools to Gather Information from States on the Implementation of the United Nations Convention Against Transnational Organized Crime and each of the Protocols thereto: Report of the Secretariat, UN Doc. CTOC/COP/2008/2, Annex (July 25, 2008).

23 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Relaunching the Conference of the Parties: Note by the Executive Director, paras. 8–12, UN Doc. CTOC/COP/2006/10 (Oct. 4, 2006). The information received by the Secretariat through these paper-based questionnaires also posed problems with respect to legibility, the reliability of the data, and the organization of information. Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Update on the Development of the Omnibus Survey Software to Collect Information on the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, Note by the Secretariat, para. 3, UN Doc. CTOC/COP/2012/CRP.2 (Aug. 23, 2012) [hereinafter Omnibus Survey Software Update].

24 Id., paras. 1–17; Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Report of the OSCE-UNODC Workshop on the “Information-Gathering Mechanism to Support and Facilitate the Work of the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime,” para. 31, UN Doc. CTOC/COP/2006/CRP.1 (Aug. 14, 2006).

25 Id.

26 Id.

27 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Possible Mechanisms to Review Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, Note by the Secretariat, para. 8, UN Doc. CTOC/COP/2008/3 (Aug. 26, 2008).

28 Id., para. 9.

29 Id. (“With 146 States parties and a scope of four instruments, the task of identifying gaps in the implementation of individual provisions and addressing States individually with respect to each of those gaps may become extremely time- consuming.”).

30 Omnibus Survey Software Update, supra note 23, paras. 3–4.

31 Id., paras. 9–13; Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Report of the Conference of the Parties to the United Nations Convention Against Transnational Organized Crime on its Fourth Session, para. 69, UN Doc. CTOC/COP/2008/19 (Dec. 1, 2008); Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Res. 5/5, Review of the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, pmbl. para. 4, para. 6.

32 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Compilation of Comments and Views Received from States on Possible Mechanisms to Review Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto: Note by the Secretariat, paras. 5–7, UN Doc. CTOC/COP/WG.1/2009/2 (Sept. 2, 2009) (China, in particular, considered that a review mechanism was not currently needed).

33 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Possible Mechanisms to Review Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto: Comparative Analysis of Existing Review Mechanisms Under Other International Instruments: Note by Secretariat, UN Doc. CTOC/COP/WG.1/2010/2 (Dec. 29, 2009) [Comparative Analysis of Existing Review Mechanisms].

34 See Meeting to Explore All Options Regarding an Appropriate and Effective Review Mechanism for the United Nations Convention Against Transnational Organized Crime and the Protocols thereto, Compilation of Contributions Received from States on All Options Regarding an Appropriate and Effective Review Mechanism for the UNTOC and the Protocols Thereto, Non-paper Transmitted by the Secretariat, paras. 9, 25, 30–50, 91, UN Doc. CTOC/COP/WG.8/2016/CRP.1 (June 3, 2016) [hereinafter 2016 Compilation]. See also Open-Ended Intergovernmental Working Group on the Review of the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, Terms of Reference for a Review Mechanism or Mechanisms, Guidelines for Governmental Experts and a Blueprint for the Country Review Reports: Proposals and Initiatives of States Parties and Signatories: Report of the Secretariat, para. 17, UN Doc. CTOC/COP/WG.5/2011/CRP.1 (May 10, 2011).

35 Trafficking Protocol, supra note 2, Art. 6(3) (“Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society . . . .”); Art. 9(3) (“Policies, programmes and other measures established in accordance with this article [on prevention of trafficking in persons] shall, as appropriate, include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.”); Art. 10(2) (training for law enforcement, immigration and other relevant officials in the preventing of trafficking in persons “should encourage cooperation with non-governmental organizations, other relevant organizations and other elements of civil society”). Smuggling Protocol, supra note 2, Art. 4(2).

36 Mark Shaw, Ugljesa Zvekic, Peter Gastrow & Julia Stanyard, What to Make of the New UNTOC Review Mechanism?, Glob. Initiative Against Transnat'l Organized Crime (Nov. 2, 2018), at https://globalinitiative.net/untoc-review-mechanism.

37 Mark Shaw & Julia Stanyard, It's Now or Never: Will a Review Mechanism for the UN Convention Against Transnational Organized Crime Finally be Achieved This Week at the Ninth Session of the Conference of the Parties?, Glob. Initiative Against Transnat'l Organized Crime (Oct. 14, 2018), at https://globalinitiative.net/untoc-review-mechanism-now-or-never.

38 See 2016 Compilation, supra note 34, para. 17.

39 Shaw & Stanyard, supra note 37.

40 UNCAC, supra note 5, Art. 13.

41 UNODC, Rules of Procedure of the Conference of States Parties to the United Nations Convention Against Corruption, Rule 17(3) (2007) (“Without taking part in the adoption of decisions on substantive and procedural matters, whether by consensus or by vote, at the Conference, such non-governmental organizations may: (a) attend plenary meetings of the Conference; (b) Upon the invitation of the President and subject to the approval of the Conference, make oral statements or provide written reports at such meetings through a limited number of representatives or questions relating to their activities; and (c) Receive the documents of the Conference.”); Rule 2(2) (“These rules shall apply, mutatis mutandis, to any mechanism or body that the Conference may establish in accordance with article 63 of the Convention, unless it decides otherwise.”). Conference of the States Parties to the United Nations Convention Against Corruption, Implementation Review Group, “Legal Opinion from the Office of Legal Affairs: Note by the Secretariat,” UN Doc. CAC/COSP/IRG/2010/9 (Aug. 26, 2010). Conference of the States Parties to the United Nations Convention Against Corruption, Civil Society Engagement in the Implementation of the United Nations Convention Against Corruption: Document Submitted by Finland, UN Doc. CAC/COSP/2015/CRP.3 (Sept. 22, 2015) [hereinafter Civil Society Engagement].

42 UNCAC Conference of States Parties, Res. 4/6, Non-governmental Organizations and the Mechanism for the Review of Implementation of the United Nations Convention Against Corruption (Oct. 2011).

43 Civil Society Engagement, supra note 41, at 6, 20.

44 UNCAC Implementation Review Group, Progress Report on the Implementation of the Mandates of the Implementation Review Group, para. 29, UN Doc. CAC/COSP/IRG/2017/CRP.11 (Oct. 30, 2017).

45 Tom Obokata, Transnational Organized Crime in International Law 215–16 (2010); Schokman, Ben & Lynch, Phil, Effective NGO Engagement with the Universal Periodic Review, in Human Rights and the Universal Periodic Review: Rituals and Ritualism (Charlesworth, Hilary & Larking, Emma eds., 2015)Google Scholar; Clapham, Andrew, UN Human Rights Reporting Procedures: An NGO Perspective, in The Future of UN Human Rights Treaty Monitoring (Alston, Philip & Crawford, James eds., 2000)Google Scholar.

46 Office of the High Commissioner for Human Rights, Working with the United Nations Human Rights Programme: A Handbook for Civil Society, 46–57, UN Doc. HR/PUB/06/10/Rev.1 (2008).

47 Mark Shaw, Divisions Thwart UNTOC Review Process: Is the Idea of a Review Mechanism for the UN Convention Against Transnational Crime Dead?, Glob. Initiative Against Transnat'l Organized Crime (May 4, 2018), at https://globalinitiative.net/un-toc_watch13.

48 Shaw & Stanyard, supra note 37.

49 The first two years of the second cycle for UNCAC's Review Mechanism were projected to cost a total of nearly USD 11 million. Implementation Review Group of the United Nations Convention Against Corruption, Projected Costs for the Functioning of the Second Cycle of the Mechanism for the Review of Implementation of the United Nations Convention Against Corruption, 9–10, UN Doc. CAC/COSP/IRG/2015/CRP.6 (May 19, 2015).

50 Conference of the Parties to the United Nations Convention Against Transnational Organized Crime, Compilation of Comments and Views Received from States on All Options Regarding an Appropriate and Effective Review Mechanism for the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto: Note by the Secretariat, para. 104, UN Doc. CTOC/COP/WG.8/2015/2 (Aug. 5, 2015).

51 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Nov. 21, 1997, 37 ILM 1 (1998, entered into force Feb. 15, 1999) (OECD Anti-Bribery Convention).

52 Procedures and Rules for the Functioning of the Mechanism for the Review of the Implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols Thereto, para. 4 [hereinafter Procedures and Rules for the Review Mechanism].

53 Id., para. 4(a).

54 Id., para. 4(a), (b), (f), (k)–(l).

55 FATF, Consolidated Assessment Ratings (Apr. 17, 2019), available at http://www.fatf-gafi.org/media/fatf/documents/4th-Round-Ratings.pdf.

56 See generally Cecily Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems 199–214 (2015).

57 Procedures and Rules for the Review Mechanism, supra note 52, para. 9.

58 Id., Appendix.

59 Id., paras. 20, 25.

60 UNODC, Sharing Electronic Resources and Laws on Crime (SHERLOC), at https://sherloc.unodc.org/cld/v3/sherloc.

61 Procedures and Rules for the Review Mechanism, supra note 52, para. 26.

62 Id., para. 10.

63 Id., para. 41.

64 UNODC, UNCAC Country Profiles, at https://www.unodc.org/unodc/en/treaties/CAC/country-profile/index.html.

65 Procedures and Rules for the Review Mechanism, supra note 52, para. 53.

66 Id., para. 53(a).

67 Id., para. 53(b).

68 Id., para. 23.

69 See Rules of Procedure of the Conference of States Parties to the United Nations Convention Against Corruption, supra note 41.

70 Procedures and Rules for the Review Mechanism, supra note 52, para. 54.

71 Id.

72 Id., para. 22.

73 See Scharpf, Fritz W., Economic Integration, Democracy and the Welfare State, 4 J. Eur. Pub. Pol'y 18 (2007)Google Scholar; Fritz Scharpf, Governing in Europe: Effective and Democratic (1999); Bodansky, Daniel, Legitimacy in International Law and International Relations, in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art 321 (Dunoff, Jeffrey L. & Pollack, Mark A. eds., 2013)Google Scholar; Ulfstein, Geir, The Human Rights Treaty Bodies and Legitimacy Challenges, in Legitimacy and International Courts 284 (Grossman, Nienke, Cohen, Harlan Grant, Føllesdal, Andreas & Ulfstein, Geir eds., 2018)Google Scholar; Kingsbury, Benedict, Krisch, Nico & Stewart, Richard B., The Emergence of Global Administrative Law, 68 L. & Contemp. Probs. 15 (2005)Google Scholar; Buchanan, Allen & Keohane, Robert O., The Legitimacy of Global Governance Institutions, 20 Eth. & Int'l Aff. 405 (2006)Google Scholar.

74 Mark Shaw & Julia Stanyard, Convention Facing Political Cul-de-Sac, Global Initiative Against Transnational Organized Crime (May 14, 2018), Glob. Initiative Against Transnat'l Organized Crime, at https://globalinitiative.net/convention-facing-political-cul-de-sac.

75 Obokata, supra note 45, at 214.

76 Sławomir Redo, Blue Criminology: The Power of United Nations Ideas to Counter Crime Globally 110 (2012).

77 Boister, supra note 7, at p35.

78 Redo, Sławomir, The United Nations Criminal Justice System in the Suppression of Transnational Crime, in Routledge Handbook of Transnational Criminal Law 57 (Boister, Neil & Currie, Robert J. eds., 2015)Google Scholar. The other three UN treaties deal with drug control issues. Single Convention on Narcotic Drugs, 1961, as Amended by the 1972 Protocol, Mar. 30, 1961, 520 UNTS 151 (entered into force Dec. 13, 1964); Convention on Psychotropic Substances (with lists of Substances), Feb. 21, 1971, 1019 UNTS 175 (entered into force Aug. 16, 1976); United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (with Annex), Dec. 20, 1988, 1582 UNTS 95 (entered into force 1990).

79 Summer Walker & Tuesday Reitano, Fragmented but Far-Reaching: The UN System's Mandate and Response to Organized Crime, Glob. Initiative Against Transnat'l Organized Crime (June 2019), available at https://globalinitiative.net/wp-content/uploads/2019/06/gitoc_un_june_19.pdf.

80 Lloyd, Paulette, Simmons, Beth A. & Stewart, Brandon M., Combating Transnational Crime: The Role of Learning and Norm Diffusion in the Current Rule of Law Wave, in Rule of Law Dynamics: In an Era of International and Transnational Governance 153, 155 (Zürn, Michael, Nollkaemper, André & Peerenboom, Randy eds., 2010)Google Scholar.

81 Walker & Reitano, supra note 79, at 2.

82 Obokata,supra note 45, at 213.

83 Budget for the Biennium 2018–2019 for the United Nations Crime Prevention and Criminal Justice Fund, Res. 26/5. The total budget for the UN Crime Prevention and Criminal Justice Fund for 2018–2019 is USD 332.6 million. Voluntary contributions and other revenue are projected to account for USD 2.9 million in general-purpose funds and USD 304.7 million in special-purpose funds. Id. See also Boister, supra note 7, at 398.

84 United Nations Office of the High Commissioner for Human Rights, UN Human Rights Report 2017, at 77, available at https://www2.ohchr.org/english/OHCHRreport2017/allegati/5_Funding_2017.pdf.

85 Peter Gastrow, Adopted 18 Years Ago, Why Has the UNTOC Still Not Achieved Its Aim?, Glob. Initiative Against Transnat'l Organized Crime (Mar. 20, 2018), at https://globalinitiative.net/adopted-18-years-ago-why-has-the-untoc-still-not-achieved-its-aim.

86 For a visual representation of this, see Lloyd, Simmons & Stewart, supra note 80, at 155.

87 See, e.g., Webb, Philippa & Garciandia, Rosana, State Responsibility for Modern Slavery: Uncovering and Bridging the Gap, 68 Int'l & Comp. L. Q. 539 (2019)CrossRefGoogle Scholar; Henri Decoeur, Confronting the Shadow State: An International Law Perspective on State Organized Crime 15–41 (2018)

88 Decoeur,supra note 87, at 148–50.

89 Rose, Cecily, Treaty Monitoring and Compliance in the Field of Transnational Criminal Law, 2 Brill Res. Perspec. Transnat'l Crime 40 (2018)Google Scholar.

90 Creamer, Cosette D. & Simmons, Beth A., The Proof Is in the Process: Self-Reporting Under International Human Rights Treaties, 114 AJIL 1 (2020)CrossRefGoogle Scholar.

91 SC Res. 1373, para. 6 (2001) (creating a Committee of the Security Council, consisting of all members of the Council, to monitor implementation of the resolution); SC Res. 1535 (2004) (creating the Counter-Terrorism Committee Executive Directorate (CTED). See e.g., Roele, Isobel, Disciplinary Power and the UN Security Council Counter Terrorism Committee, 19 J. Conflict & Sec. L. 49 (2013)Google Scholar; Bianchi, Andrea, Security Council's Anti-Terror Resolutions and Their Implementation by Member States, 4 J. Int'l Crim. Just. 1044 (2006)CrossRefGoogle Scholar.

92 The INCB consists of thirteen individuals who are elected by the Economic and Social Council and serve in their personal capacity for terms of five years. Single Convention on Narcotic Drugs, 1961, as Amended by the 1972 Protocol, , Art. 9(1)–(2), 976 UNTS 105 (entered into force Aug. 8, 1975). The CTED, by contrast, consists of approximately forty UN staff members who serve in their official, rather than personal capacity. When the CTED conducts country visits, the delegations consist of representatives from CTED, other UN entities, and other non-UN bodies, such as FATF-Style Regional Bodies. International Federal for Human Rights (FIDH), The United Nations Counter-terrorism Complex: Bureaucracy, Political Influence and Civil Liberties 32–33 (2017), at https://www.fidh.org/en/international-advocacy/united-nations/united-nations-the-global-fight-against-terrorism-hampered-by.

93 See, e.g., Comparative Analysis of Existing Review Mechanisms, supra note 33.