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

Abstract

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.

Beyond Conventional Boundaries

“…At the national and international policy level, there is opposition to the idea that corrupt state representatives can be active participants in organized crime. For instance, the United Nations Convention against Transnational Organized Crime (UNTOC) does not acknowledge or address state involvement in organized crime, beyond passive bribery by a state official, and treats organized criminal activity as something carried out by private actors (Rose 2020).…”

“…National governments would clearly rather think of their own representatives as passive receptors of bribes from an obscure category of "bad guys" than active participants in organizing crime. Furthermore, there would be little if any interest from UN member states in drawing attention to this discrepancy between international legislation and the empirical reality (Rose 2020), and even less interest among powerful yet at the same time very corrupt countries. Meanwhile, the author of this paper partook in the process of drafting a paper on heroin trafficking from Afghanistan (compiled by one of the UN agencies) in 2020, whereby the state delegations of Russia together with a few other Central Asian countries systematically undermined any efforts to emphasize the importance of drugs-related corruption and the participation of state actors in the smuggling activity.…”

“…These notices are widely perceived as an extortion tool and they are usually issued on trucks neglecting to bribe representatives of the SSU (DSnews.ua 2016, Info Korruptsya, undated). Meanwhile, there are cases when inter‐agency competition does not emerge and agencies collaborate in extorting rents from illicit trade (Saakov 2018).…”

Fulfilling the Promise of Palermo? A Political History of the UN Convention Against Transnational Organized Crime

“…The substantive stumbling blocks were the funding model, the role of civil society, the nature of the peer review and the primacy of its intergovernmental nature. The details of these disagreements have been analysed elsewhere (Rose 2020), with the twin issues of budget and civil society clearly plaguing efforts. The combination of factors that allowed the Convention to be negotiated in the first place seemed absent.…”

The International Endorsement of Corporate Settlements in Foreign Bribery Cases

“…When brokering the Mechanism, UNCAC State Parties failed to agree on 'whether civil society should be allowed to attend the meetings of the Implementation Review Group'. 196 The outcome was a loose obligation on State Parties to 'endeavour to … [conduct] broad consultations at the national level with all relevant stakeholders, including the private sector, individuals and groups outside the public sector', when responding to the Mechanism's mandatory questionnaire. 197 Country visits are not required but, should they be conducted, 'engagement with all relevant national stakeholders' is encouraged.…”