Mark Shaw

Is the idea of a review mechanism for the UN Convention against Transnational Organized Crime dead?

Effective implementation of the UN Convention against Transnational Organized Crime (UNTOC) has long been hindered by a series of technicalities. First and foremost among these has been the struggle to develop a functional review mechanism, similar to the review processes seen in the UN Convention against Corruption (UNCAC) and the Universal Periodic Review of the UN Declaration and Charter of Human Rights. Such a review process would enable monitoring of the implementation of the convention among states parties.

This issue has recurred continually since the very first session of the Conference of the Parties (COP) in 2004, but remains unresolved. A resolution taken at the 2016 COP, which aims to ‘continue the process of establishing the mechanism’, has yielded a lot of discussion but, sadly, few results.

Of course, achieving a review mechanism is no end in itself – but it would provide a concrete set of activities within the wider landscape of progress on UNTOC and a focus on its implementation. And, like all review mechanisms, such a process may have its drawbacks. Yet the attendant discussions and engagements at state level that a review mechanism would entail could at least prompt some momentum and pressure. Either way, without an effective system of review, the convention may shrink into irrelevance, with no checks on what states have achieved in terms of meeting its provisions.

International divisions over the review process

Opinion among countries is divided on the review mechanism issue. Broadly, there are four groups of countries, although some states have shifted their stance as negotiations have proceeded.

The first, and largest, is a group of developing countries that includes China and Russia. Pakistan, Iran and South Africa are particularly vocal here. Their position strongly supports a review mechanism paid for by the UN regular budget and similar in set-up to that of the UNCAC. There is, however, a strong lobby within this group that disputes the role of civil society input in what is seen as effectively a government-determined process. In short, their vision is a core funded mechanism that excludes outside views and gives strong control to states parties.

The second broad group, led by the US, and with support from the UK, Japan, Australia and Canada (although Canada’s position has apparently softened), is strongly against the use of the UN regular budget to support the mechanism. This school of thought is partly based on a broader policy of containing UN regular budget growth, but it is also linked to a seeming discomfort with an onerous mechanism that taxes government resources. The US, for one, has recently proposed several options for a ‘review mechanism light’, each of which limits the costs and the role of the secretariat, as well as the depth and reach of the mechanism.

While this second group is largely seen to be supportive of civil-society input, it is telling that the countries involved have not articulated their position on the issue. ‘Scratch the surface,’ says one diplomat involved in the process, ‘and you will see that civil society is not really the main preoccupation here.’

Conspiracy theories abound as to why these states are hedging against the development of the review mechanism, given that a global push against organized crime seems to be in line with what they say publicly. One theory is that such developed states don’t want to be reviewed by smaller and developing states. The countries involved have also argued that the UNCAC process has been too onerous, yet even this is seen as a smokescreen, as many of them have been strongly supportive of the process at other times.

The third group is a set of European states – most prominently Italy, but also France and, to some extent, Germany – combined with Latin American countries, such as Mexico and Costa Rica. Although these countries are eager for a review mechanism that includes civil-society participation, there is some flexibility here, as most are ready to compromise to take the process forward, including on a weakened role for civil society. Italy plays an important role as convenor in this grouping, partly because of its historical link to the convention and a feeling that it needs to be reinvigorated.

The final group of states includes just two: Norway and Switzerland. These have consistently pushed the important role that civil society might play, sometimes, as others have griped, to the detriment of the process as a whole, which, they argue, should focus on resolving the bigger issues at stake.

At an impasse

As things stand now, no agreement seems possible. There is just not enough consensus in the room nor enough outside pressure to bang heads together and reach an agreement. The secretariat is almost universally seen as not having provided a vision, although, as officials themselves, they have been constrained in terms of what they can do.

The overall result of this is that an enormous amount of diplomatic energy has gone into these discussions, without any clear outcome – other than uncertainty: no one really knows how well the convention is being implemented globally. While numbers have been presented by some states (mainly the US) on international cooperation, few others have these to hand. There is also little evidence that the provisions for formal international cooperation contained in the convention have been widely implemented beyond a few states, as Neil Boister has argued in a recent article. The prevention provisions have been barely explored, and the focus on information sharing and research has been left untouched.

It is hard not to reach the conclusion that UNTOC has not achieved its potential and is unlikely to do so soon. A great deal of argument has yielded pitifully few results. Some options for a review mechanism among a few like-minded or willing states may eventually materialize – but they are unlikely to carry the universality that is needed to drive wider consensus.