Posted on: 10 December 2019
A year ago, we reported on the adoption of the review mechanism to the UN Convention against Transnational Organized Crime (UNTOC). It is now a year until the launch of the mechanism, at the next Conference of the Parties (CoP), due to take place in Vienna in late 2020. What challenges lie ahead in preparation for the launch of this important moment in global efforts to prevent and counter transnational organized crime?
At the CoP in October 2018, the states parties to UNTOC finally agreed to a mechanism to review their implementation of the convention, in resolution 9/1. The main features of the mechanism are as follows:
- It incorporates ‘guiding principles and characteristics’ based on those enshrined in the UN Convention Against Corruption (UNCAC). These ensure that states parties are protected from public criticism, ‘any form of ranking’, and that the review process is impartial and, crucially, ‘intergovernmental’ – meaning that civil-society participation is unfortunately restricted.
- It entails a review by two other countries. Countries are reviewed for those instruments to which they are party, over a period of eight years. The outcomes of these country reviews will feed into the CoP’s general review and are designed to ‘facilitate the exchange of experiences, lessons learned, best practices and challenges in implementing the Convention and Protocols … with a view to improving their effective implementation and promoting international cooperation’.
- The thematic working groups of the CoP will follow up on the findings of the country reviews in a thematic and overarching way, rather than by providing any focus on specific country outcomes. After the working groups have considered their official business (to which civil society is not currently invited), the mechanism allows for ‘constructive dialogues’ of the working groups with civil society and other relevant stakeholders.
The CoP agreed to a launch date for the mechanism in late 2020. However, the agreement left a number of issues to be finalized by the states parties. The CoP agreed to set up a working group, composed of all states parties, to negotiate final versions of self-assessment questionnaires that countries will need to complete as part of the country review. Four questionnaires are needed for the convention and its three protocols (human trafficking, migrant smuggling and firearms trafficking), and this work is not yet complete. States parties at the working group have, however, succeeded in finalizing guidelines for conducting the country reviews and a blueprint for the lists of observations.
Leading up to the launch, the secretariat has been charged with developing a secure module onto which the country review information will be uploaded. The UNODC has also been supporting states parties in their discussions on the questionnaires, blueprints and guidelines.
States parties have clearly made some progress therefore towards their readiness for the launch, but unresolved discussions over the questionnaires, for example, have taken time because of disagreements over how closely the questionnaires should stick to the language and scope of the convention and its protocols.
The operational challenges that the mechanism will face are summarized below:
- Drawing of lots: Due to the nature of reviewing the implementation of four legal instruments, Resolution 9/1 agreed to a complex set of rules around the drawing of lots for how each country under review will be allotted two other countries to act as reviewers.
- Multilingualism: The agreement allows for one or two of the six UN working languages to be used in each review, with the secretariat providing translations. However, the list of observations (effectively the outcomes of the country reviews) must be translated into the six languages for circulation to the CoP. These linguistic requirements could cause delays if documentation is submitted late to the secretariat, or if budgetary constraints cause problems or delays in the communication between the country under review and the reviewing countries.
- Funding: The lack of predictable funding through the UN’s Regular Budget will remain a constant challenge for the secretariat. With its long 12-year implementation period, and with its complicated nature likely to cause delays, there is a risk of escalating costs and waning commitment from donors after the initial years.
Despite some positive steps, the mechanism remains a complex and opaque process to the untrained eye, allowing room for individual states parties to engage with one another bilaterally behind closed doors without having to worry too much about outside scrutiny or pressure. Because of its lack of transparency, the review mechanism affords high levels of protection in terms of how states parties shape the outcome of their reviews, and to whom the information is made available. This restricts the ability of meaningful follow-up action to be implemented. There is a good argument that states parties should be compelled to sign a pledge of transparency – as several parties to UNCAC have done.
Crucially, the review mechanism arguably does not allow for sufficient engagement with civil society and other stakeholders. As we have argued elsewhere, civil society has an important role to play in improving the value of the review process by providing more varied, impartial perspectives and therefore informing how implementation can be improved. From our position as a global civil society organization focused on transnational organized crime, that is why we are partnering with the UN Office on Drugs and Crime (UNODC) on this process.
While we value the review mechanism to the convention as a positive achievement, there are evident risks on the horizon in terms of its effectiveness. The operational challenges lie in the mechanism’s complexity and the compromises struck in 2018, but the more fundamental challenges that potentially stymie its successful implementation are down to its intergovernmental structure, which closes off the process and its outcomes to outside influence.
It falls to civil society and other key stakeholders to make the most of the avenues that are open to us through this review mechanism. However, it also falls to states parties – especially those genuinely committed to civil-society engagement and promoting transparency – to harness the external input that can improve this state-led process for the good of all society.