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THE GLOBAL SITUATION OF TRANSNATIONAL ORGANIZED CRIME, THE DECISION OF THE INTERNATIONAL COMMUNITY TO DEVELOP AN INTERNATIONAL CONVENTION AND THE NEGOTIATION PROCESS

Dimitri Vlassis*

I. TRANSNATIONAL ORGANIZED CRIME IN PERSPECTIVE

The threat posed to national andinternational security by transnationalcrime, in all its forms and manifestations,is not the inadvertent by-product of long-term trends. On the contrary, this threatis an inevitable consequence of theactivities of individuals and organizationsas they corrupt s tate inst itut ions ,undermine the rule of law, threaten theintegrity of financial and commercialsectors of society, contravene legal andsocial norms and conventions, transgressnational sovereignty and violate nationalborders. New opportunities offered by theglobalization of trade and communicationshave been exploited eagerly and effectivelyby criminals, leaving law enforcementtrailing behind and working to match theinventiveness, adaptability and resilienceof cr iminal organizations that havebecome transnational in both thought anddeed.

Th e to l l o f cr i me h as b ecom efrightening. Not to mention the misery itleaves in its wake, the financial damageto societies is staggering. The economicprice exacted on nations is enormous,while its social and hidden human costs

are even higher. In addition to traditionaland “street” crime, the consequences oforganized crime present real and presentdangers to progress and a brake todevelopment. Violence associated withthis form of crime is extending its reachfar beyond national frontiers. Organizedcriminal groups are spreading theiroperations around the globe and areengaging in a variety of activities thatrange from the traditional to the modernwith an increased level of sophistication.They also display a remarkable ability toshift across borders and from activity toactivity with speed and adaptability thatwould be the envy of any legitimatebusiness. Overall, the annual profits oforganized crime are estimated, accordingto some sources, at one trillion dollarsworld-wide; almost as much as theUnited States annual federal budget.Moreover, the export of precious rawmaterials, including chemical, biologicaland nuclear material, is increasinglyattracting the attention, and often fallinginto the hands of organized crime.Through its interfaces with other licit andill icit activities, organized crime isinfiltrating national economies, takingadvantage of the difficulties of followingthe trail of criminal proceeds. It hasbecome c lear that only by tacklingorganized crime in a concerted mannerinroads can be made into a problem thatexc eeds th e c a pac i ty o f n at i ona lmechanisms operating alone.

* Crime Prevention and Criminal Justice Officer,

Secretary of the AD HOC Committee for the

Elaboration of the United Nations Convention

Against Transnational Organized Crime, United

Nat ions Centre For Interna ti onal Cr ime

Prevention (United Nations)

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Developing countries and emergingdemocracies are becoming a target fororganized criminal groups operatinga cr os s bor der s , bec au se o f th e irvulnerabilities, while their institutionsare either young or in the process of beingbuilt. Often, the sophisticated modusoperandi of these groups is no match tothe criminal justice systems of developingcountries and countries with economiesin transition. The need for foreign capitalto give new life to the economy and assistthese countr ies in enter ing today ’scompeti t ive and demanding g lobalmarket, frequently obscures the long-term threat posed by the investment ofcriminal proceeds. Criminal groups arekeen to enter developing countries andeconomies in transition, not only becauseof their potential, but also because of thedecreased risks involved. The advantagesthat such groups enjoy , due to thesizeable amounts of money at theirdisposal and their ability to eliminatecompetition through intimidation andviolence, make risks that would daunta ny leg i t ima te bu s in ess per fe c t lyacceptable. The consolidation of theirpower places in grave danger the growingeconomies of those countries, particularlyin terms of their future development,their competitiveness in the internationalarena, and their stability.

Money laundering is a vital componentof all forms of organized crime. Theinfiltration of legal financial markets andthe attempts of organized crime to controlsectors of national economies through thelaundering of its illicit proceeds continueto represent g rave threats fo r theinternational community and for nationaland international financial systems. Freetrade and high-speed telecommunicationsmake it easier to engage in multipleactivities and launder money acrossnational borders, with an estimated onebillion dollars in crime profits wire-

transferred through the world financialmarkets ever y day . In add i t ion toconcea l ing weal th and lau nderin gproceeds, organized criminal groups aretu r ni ng t o “bor der l i ne ” e c on omicendeavours, while diversifying theiroperations in response to a principle thathas been driving international businessfor ever: reduce risks and maximizeprofitability. Since these types of crimeoften involve no violence, they offer theadditional advantage of not drawingpublic attention, which puts increasedpressure on national authorities foraction. Such activities come with thepotential for power, which organizedcrime has never shunned. Anotherfeature in these types of crime is that thesuccessful engagement of criminals ineconomic crimes is often viewed by thepublic as an act of cunning and evenbr av er y . Th is a t t i tu de ampl ydemonstrates the corrosive effects thatsuch crimes have on the social fabric. It isfu ndamen ta l th at th is at t i tude bereversed, because it can prove equally ormor e dan gerou s th an th e of f en cesthemselves.

Nov e l th r eats d eman d nov e lcombinations of expertise and noveloper at i ona l ca pab i l i t ie s . I f th einternational community is to respondeffectively to the threats posed bytransnational criminal organizations,then policy solutions need to be not onlycomprehensive and well-coordinated, butalso highly imaginative. Strategiesshould take full account of the nature ofthe challenge. On the grounds that ittakes a network to defeat a network,emphasis should be given not simply toext end in g t h e f o r mal i t i e s o f la wenforcement and judicial cooperation, butalso to building a transnational networkof coordinated measures that wouldeventual l y b e g loba l . An e f f ec t iveconcerted approach should also take into

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account the risk management strategiesof criminal organizations and shouldinitiate appropriate action to reduce orovercome them. The responses should bet he c on ver se o f th e c r i min alorganizations. Among the objectives to beachieved is to eliminate safe havens forcriminal organizations, recognizing that asafe haven is more likely to be the resultof limited state capacity than to be theresult of lack of will. A multilateralapproach offers distinct advantages and ahigher probability of success. Equallyimportant is the targeting of the assets ofcriminal organizations, focusing less onthe money laundering process as sucha nd mo re on th e un c over in g a n dforfeiture of the assets accrued by theseorganizations. States must reflect veryseriously on the impact of organizedtransnational crime on the lives andeconomic activity of their citizens. It isimperative to promote worldwide aculture of legality and tolerance, insteadof accepting a culture of lawlessness andviolence, which dangerously threatensnational institutions and their principalfoundation: global values. Policy- anddecision-makers, and leaders must begin,as a matter of urgency, to think in termsof new partnerships to safeguard globalvalues and prevent organized crime andmoney laundering from impeding thequest of countries for growth, stabilityand steady progress towards democracy.

Th r oug h out th e w orl d , th er e i srecognition of the need to develop moreeffective, ideally global, strategies for theprevention and control of organized crimein all its forms and manifestations. Thetask before the international communityis, however, even greater, because thedevelopment of better and more effectivesolut ions i s no t the only need; theinternational community must reassessthe very nature and dimensions of theproblem, and the policies that can serve

the common purpose of dealing with it.States must also reflect very seriously onthe impact of crime in general, andorg an iz ed tr an sn at ion al c r ime inparticular, on the lives and economicactivity of their citizens. Policy- anddecision-makers, leaders and the publicin general must gear their minds to thinkbeyond and challenge perceptions more orless well ingrained. It is necessary toreassess interests and look beyondtraditional roles and stereotypes. If this isdone , i t is a lmost certa in that theinternational community will discoverthat the public and private sectors sharemuch more than was thought. They sharenot only common interests but alsocommon values. The inter nat ionalcommunity must begin, as a matter ofurg en cy , to th ink in ter ms o f n ewpartnerships to safeguard these valuesand protect mutual interests.

II. UNITED NATIONS EFFORTS TO STRENGTHEN INTERNATIONAL

COOPERATION AGAINST ORGANIZED CRIME: THE EARLY

YEARS

The work of the United Nations tostrengthen international cooperationagainst organized crime dates backtwenty-five years. The issue in its variousaspects has been debated and analysed bysuccessive congresses on the preventionof crime and the treatment of offenders,the quinquennial event organized by theUnited Nations Crime Prevention andCriminal Justice Programme since itsestablishment.1 This debate and itsresults reflect the changing perceptionsand comprehension of the problem overseveral decades. It must also be viewed as

1 The Tenth United Nations Congress on the

Prevention of Crime and the Treatment of

Offenders was held in Vienna from 10 to 17 April

2000.

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a series of steps, as a sustained course inthe direction of raising awareness amongpo l i c y - an d deci s i on-m aker s an dchallenging the conventional thinkingabout crime prevention and criminaljustice matters. The process must beviewed in perspective and in context. TheUnited Nations is a global organization,with a steadily increasing membership,especially after the end of the Cold War.In this environment, there are variousand multiple political concerns anddifferences in political and substantiveapproaches to problems. Dominanta mon g th e c on c ern s r emai nssafeguarding sovereignty, which is formany smaller developing countries andcountries with economies in transition (oremerging democracies) the last bastion ofnational integrity and identity. Criminalj u st i ce mat ter s a re a t th e c or e o fsovereignty concerns, being perceived asessentially domestic in nature, touchingas they are on institutions ranging fromnational constitutions to legal regimesand systems.

The Fifth United Nations Congress ont he Pr ev ent ion o f Cr ime an d th eTreatment of Offenders, held in 1975,examined the “Changes in Forms andD im ens ion s o f C ri min al i ty —Transnational and National” underagenda item 5. In what could today, withthe benefit of h indsight, be termedprophetic, the Congress focussed on crimea s b us in ess at t he na t ion al an dtransnational levels: organized crime,white-collar crime and corruption. Crimeas business was recognized to pose a moreserious threat to society and nationaleconomies than traditional forms ofcrime. While it was a serious problem inmany developed countries, the nationalwelfare and economic development of theentire society in developing countries wasfound to be drastically affected by such

criminal conduct as bribery, price-fixing,smuggling and currency offences.

In 1980, the Sixth United NationsCongress, under agenda item 5 entitled“Crime and the Abuse of Power: Offencesand Offenders beyond the Reach of theLaw , ” added n ew e lemen ts to th einternational perception of organizedcrime. Among these offences were thosecrimes with respect to which the lawenforcement agencies were relativelypowerless because the circumstancesunder which they had been committedwere such as to decrease the likelihood oftheir being reported or prosecuted.Organized crime, bribery and corruptionwere among the first examples listed.

The Seventh Congress considered theissue further in 1985 under its Topic 1,entitled “New dimensions of criminalityand crime prevention in the context ofdevelopment: challenges for the future.”The Congress emphasised that multiplei l l i c i t oper at ion s c ar r i ed out b yin ter n at i ona l c r imi na l n e tw or ksrepresented a major challenge to nationallaw enforcement and to internationalcooperation.

In 1990, within the framework of itsTopic III, entitled “Effective national andin ter n at i ona l ac t ion ag ain st : (a )Organized crime; (b) Terrorist criminalac t i v i t ie s , ” t he E ig h th Con gr es sexamined the problem of organizedtransnational crime in the light of newhistoric developments. The rapid increasein the number of independent countries,together with the growing expansion ofcriminal activities beyond nationalborders, had created the need for newinternational institutions, which couldintroduce a measure of order and enhancethe effectiveness of crime preventionefforts. On the recommendation of theCongress, the General Assembly focused

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on s tr eng th en in g i nt ern a t ion alcooperat ion by adopt ing the ModelTreaties on Extradition,2 on MutualAssistance in Criminal Matters,3 onTransfer of proceedings in CriminalMatters4 and on Transfer of Supervisionof Offenders Conditionally Sentenced orConditionally Released.5 The Congressalso adopted a set of guidelines againstorganized crime in resolution 24, whichwas welcomed by the General Assemblyin resolution 45/121. In resolution 45/123,the General Assembly urged MemberStates to implement these guidelines andinvited them to make available to theS ecr e t ar y-G en era l t he i r n a t ion allegislation against organized crime andmoney laundering.

The Eighth Congress also marked thebeginning of a new era for the UnitedNations Crime Prevention and CriminalJustice Programme. At first glance, thechanges that were precipitated by therecommendations of the Congress, andthe action that followed at the legislativelevel, were of a mostly institutionalnature . Quite to th e c ontrary, th esignificance of these changes lies in thefact that States confronted, a lbe itimperfectly, one of the core concerns ofthe internat ion al community . Th equestion was to what extent the UnitedNations, faced with radically changedpolitical and historical realities, wouldcredibly perform its primary function ofb e in g a po l i c y -mak i ng fo r um a n dmedium, while simultaneously providingdeveloping countries with the means to

effectively cooperate with their peers. Onthe recommendat ion of the EighthCon gr ess , t h e S ecr e t ar y-G en era lconvened the Ministerial Meeting on theCreation of an Effective United NationsCrime Prevention and Criminal JusticeProgramme, which was held in Versaillesfrom 21 to 23 November 1991.6 TheMeeting developed a Statement ofPrinciples and Programme of Action,which the General Assembly adopted inDecember 1991.7 In this document theAssembly determined that the revampedProgramme would focus its activities onspecific areas of priority, and direct itsenergies toward providing timely andpractical assistance to States at theirrequest. Action against organized crimefigured prominently among the areas ofpr i o r i ty at t ent ion f o r th e newProgramme. On the institutional level,the Assembly decided that the Committeeon Crime Prevention and Control, thegoverni ng body o f the Pr og rammecomposed of experts nominated byGovern ments bu t s er v in g in the irindividual capacity, would cease to exist.In its place, the Assembly established theCommission on Crime Prevention andCr imi na l J us t i ce , a fu nc t i ona lCommission of the Economic and SocialCouncil, composed of the representativesof 40 Governments, thus ensuring directgovernmental involvement in bothdecision-making and oversight of theProgramme’s activities.

The Commission was established andheld its first session in 1992. One of itsfirst endeavours was to flesh out furtherthe general guidelines established by theGen er a l A ss embly r ega rd i ng th epriorities of the Programme. On its

2 See General Assembly resolution 45/116, of 14

December 1990.3 See General Assembly resolution 45/117, of 14

December 1990.4 See General Assembly resolution 45/118, of 14

December 1990.5 See General Assembly resolution 45/119, of 14

December 1990.

6 See General Assembly resolution 45/108, of 14

December 1990.7 See General Assembly resolution 46/152, of 18

December 1991.

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recommendation, the Economic andSocial Council determined that one of thepriority themes that should guide thework of the Commission and the UnitedNations Crime Prevention and CriminalJustice Programme would be: “nationaland transnational crime, organizedcrime, economic crime, including moneylaundering, and the role of criminal lawin the protection of the environment”.8

Th e Cou n ci l a l so t ook n o t e o f th erecommendations of two Ad Hoc expertgroup meetings, which had been held in1991, in Smolenice, Slovak Republic, andin Suzdal, Russian Federation, andrequested the Secretary-General tocontinue the analysis of the impact oforganized criminal activities upon societyat large.9 The Commission, also at itsfirst session, requested the Secretary-General to examine the possibility ofc oor d in at in g e f f o r ts made at th emultilateral level against the launderingof proceeds of crime, and to proposemea ns f or te c hn ic a l as s is tan c e t orequesting Member States in draftingl eg is l at ion a nd in t ra i n in g o f lawenforcement personnel, as well as indeveloping regional, subregional andbilateral cooperation.10

III. THE ROAD TO THE CONVENTION

The direct governmental involvementin setting the agenda for the UnitedNations Crime Prevention and CriminalJustice Programme, assured through theestablishment of the Commission, helpedgive new impetus to the importance ofinternational action against organized

crime. In its first couple of sessions, theCommission engaged in intense work,reviewing and assessing the activities ofthe Programme until that time andpav in g th e r oad f o r th e fu tu re .International concerted action had beenidentified as a key component of successagainst organized crime, which wassorely missing at the time. This was oneof the conclusions which one of theprominent figures of the fight againstorganized crime, Judge Giovanni Falcone,had derived from all his efforts againstthe Mafia. Judge Giovanni Falcone isknown for sweeping successes againstor gan iz ed c r ime in I t a ly t h rou g hmeticu lous wor k, expansion of h isinvestigations into fields previouslybey ond th e sc ope o f t ra d i t i ona lpr osec u tor ia l wo rk , a nd t h rou g hcooperation with the authorities of othercountries. What is perhaps less wellknown is that about two months beforehis tragic death, Judge Falcone led hiscountry’s delegation to the inauguralsession of the Commission. In whatprobably was his last public address at aninternational forum, he called for moremeaningful action at the internationallevel against organized crime, in order toaddr es s th e pr ob l em o f n at i ona lau th or i t i e s t r y in g to cope wi th aphenomenon that was no longer national.In explaining why he thought moreinternational cooperation was a must,Judge Falcone launched the idea of aworld conference at a sufficiently highpolitical level to lay the foundations forsuch cooperation.

The Commission took up the idea of amajor world conference on organizedcrime the year after Judge Falcone’sdeath. In doing so, it built on the efforts ofthe United Nations and the awarenessan d in ter est d is p la yed b y th einternational community through thesignificant work at the policy-making

8 See Economic and Social Council resolution 1992/

22.9 See Economic and Social Council resolution 1992/

23.10 See Commission on Crime Prevention and

Criminal Justice resolution 1/2.

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level that it had accomplished in its shortex is ten ce . Th e r esu l t w as th eorganization of one of the most significantevents in the history of the UnitedNations Crime Prevention and CriminalJ us t i c e Pr ogr amm e. Th e W or l dMinisterial Conference on OrganizedTransnational Crime, held in Naples,from 21–23 November 1994 was also oneof the best attended events ever, withover 2000 participants and delegationsfrom 142 States (86 of them at theMinisterial level, while others wererepresented by their Heads of State orG over n men t) . Th e C onfe ren c eunanimously adopted the Naples PoliticalDeclaration and Global Action Plana ga in st Or ga ni zed Tr an sn a t ion alCrime,11 which was approved by theGeneral Assembly one month later.12

The Naples Political Declaration andGlobal Action Plan emphasised the needfor urgent global action against organizedtransnational crime, focussing on thestructural characteristics of criminalorganizations. Countries were calledupon to begin the process of harmonisingtheir legislation, while special attentionwas paid to the need for countries toensure that their criminal justice systemshad the capacity to prevent and controlorganized transnational crime in all itsmanifestations. Equal attention wasgiven to the need for the internationalcommunity, particularly donor countriesand f inancing institutions, to assistdeveloping countries and countries witheconomies in transition to bridge the gapbetween the capacity of their criminaljustice systems in general, and lawenforcement authorities in particular,and the ability of organized criminalgroups to shift their operations from

activity to activity and to elude effortsagainst them by using sophisticatedmethods of operation.

The Naples Political Declaration andGlobal Action Plan stressed the need forthe international community to arrive ata generally agreed concept of organizedcrime as a basis for more compatiblenational responses and more effectiveinternational cooperation. Particularattention was given to more effectivebilateral and multilateral cooperationagainst organized transnational crime,as ki ng t he C ommis s i on on C ri mePrevention and Criminal Justice toexamine the possibility for a conventionor c onv en t ion s a ga i ns t o r ga ni zedtransnational crime. Furthermore, theprevention and control of the launderingand use of the proceeds of crime wereconsidered essential elements of anyinternational effort.

Th e negot iat ions f or the NaplesPolitical Declaration and Global ActionPlan were long and difficult. One issue ofcontention was whether the documentwould issue a clear mandate for theelaboration of a new convention againsttransnational organized crime. Most ofthe members of what is known in theUnited Nations as the Western Europeanand Others Group (a regional groupwhich includes all Western Europeancountries as well as Australia, Canada,New Zealand and the United States) weresceptical, if not openly negative to theidea of a convention. The reason was thatthey regarded the subject as too thorny toapproach, especially since it involved anu mb er o f c onc eptu a l an d l ega ldifficulties, with definitions figuringprom in ent ly am ong t hem . The seconceptual and legal problems, coupledwi th th e in her en t d i f f i c u l ty o fnegotiations with the full membership ofthe United Nations around the table, led

11 See United Nations document A/49/748.12 General Assembly resolution 49/159 of 23

December 1994.

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these countries to conclude that the finalproduct was likely to be the lowestcommon denominator. An instrumentwithout “teeth” was something that wasnot desirable and perhaps not worth thet ime and eff ort for most developedcountries. A further concern stemmedfrom the perception that the more or lessquite well developed networks of regionala nd b i la ter a l ar r an gem ent s th atdeveloped countr ies had developed,especially in the field of internationalcooperation in criminal matters, wassufficiently operational and functional tode a l w it h o r g an ized cr im e . Thes ecountries thought that a new conventionmight place those arrangements injeopardy, especia lly regarding thepresumably stronger provisions theycontained.

At the other end of the spectrum stoodthe vast majority of developing countriesthat thought the idea of a new conventionwas a good one for several reasons. First,the prospect of a universal instrumentheld appeal for developing countriesbecause of the nature of the problem theywere beginning to witness crossing intotheir territories and affecting their effortstowards development. In this regard,many developing countries and countrieswith ec onomies in transi t ion wereexperiencing sentiments bordering ongenuine shock because they had no way ofaccurately estimating the maliciouspotential of organized criminal groups.For many years, they were under theimpression that organized crime was theproblem of industrialised countries. Mostof them were also under the impressionthat organized crime was synonymous todrug trafficking and that issue had beenthe object of numerous international andregional initiatives and instruments,which provided a certain degree ofguidance and coordinated response.Second, the possibility of dealing with a

problem in the context of a global forum,such as the United Nations, has alwaysbeen favoured by developing countriesbecause of the relative parity, which thatforum affords them. Strengthening thisconviction is the tendency of UnitedNations in most of its entities to favourdecisions by consensus and to avoid, if atall possible, voting. Consensus decision-mak i ng a l low s mor e r oom for th econcerns of smaller countries to be takeninto consideration and reflected in thefinal outcome of the endeavour. Third, asany instrument against transnationalorganized crime would dwell at length onmethods of international cooperation,deve lop in g c ou nt r ies s aw a n ewconvention as the way of addressingpressing needs in that area. Lacking theresources, both human and financial, aswell as the negotiating power, developingcountries and emerging democracies hadquickly recognized their inability toemba rk u pon th e deve l opmen t o fext ens iv e ne t wor ks o f b i la t era lagreements or arrangements in the fieldof international cooperation in criminalmatters. An international conventionoffered the potential of making up for thisinability and of filling the gaps theseco un tr ies ha d iden t i f ied in th ecooperation they needed.

In view of all this, developing countriesan d cou n tr ies w it h e c onom ies i ntransition, as a block, threw their supportbehind the idea of a convention in Naplesand tried to use the Declaration as thevehicle for promoting its elaboration. Thefinal language of the Declaration was acompromise solution, which was theresult of the tireless efforts of the thenVice-President of Colombia (who waschairing the negotiating committee at theConference) and the delegate of Italy incharge of these negotiations, AmbassadorLuigi Lauriola (who is now serving as theChairman of the Ad Hoc Committee on

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the Elaboration of the Convention). It isimportant to keep this background inmind, when the elaborat ion of theConvention itself will be discussed,because over time and with changingcircumstances and political agendas,there has been considerable evolution ofthat position.

The Commission on Crime Preventionand Criminal Justice followed up on theimplementation of the Naples PoliticalDeclaration and Global Action Plan at itsfourth13 and fifth14 sessions. On itsrecommendation at its fourth session, theEconomic and Social Council requestedthe Secretariat to perform the followingfunctions: (a) to initiate the process ofrequesting the views of Governments on aconvention or conventions; (b) to collectand analyze information on the structureand dynamics of organized transnationalcrime and on the responses of States tothis problem, for the purpose of assistingthe international community to increaseits knowledge on the matter; (c) to submitto Member States at the following sessionof the Commission a proposal on thecreation of a central repository of existinglegislative and regulatory measures andinformation on organizational structuresdes ig ned to c omb at o rg an ize dtransnational cr ime; (d) to submitproposals to the Commission for thedevelopment of practical models andpractical guidelines for substantive andprocedural legislation in order to assistdeveloping countries and countries intransition; (e) to provide advisory servicesand technical assistance to requestingMember States in needs assessment,capacity-building and training, as well asin the implementation of the NaplesPolitical Declaration and Global ActionPlan; and (f) to join efforts with other

relevant international organizations inorder to reinforce common regulatory andenforcement strategies in the area ofprev en t io n a n d c ont ro l o f moneylaundering, and to assist requestingStates in assessing their needs in treatydevelopment and the development ofcriminal justice infrastructure andhuman resources.15 An in-sessionalintergovernmental working group wasestablished at the fifth session of theCommission to review the v iews ofGov er nme nt s on a c on ven t i on orconventions, as well as the proposals ofthe Secretariat described under (c) and(d) above. The (then) Crime Preventionand Criminal Justice Division, on thebasis of information provided by MemberSt ates , pr epa red a r epor t f o r th eCommission’s consideration at its fifthsession, in which the actual situation oforganized crime was reviewed. Mostresponding Member States expressedtheir favourable disposition towards acon v ent ion a ga in st o r ga ni zedtransnational crime.

In November 1995 , th e Div is ionorg an iz ed a r egi ona l Min is ter ia lWorkshop on the Follow-up to the NaplesPolitical Declaration and Global ActionPlan, hosted by the Government ofAr gen t i na in Bu enos A ir es . Th eWorkshop adopted the Buenos AiresDeclaration on Prevention and Control ofOrganized Transnational Crime. Thecountries of Latin America and theCaribbean expressed their support forexpeditious follow-up to the NaplesPolitical Declaration and Global ActionPlan and endorsed the idea of developinga c onv en t ion ag ai ns t o r ga ni zedtransnational crime, offering a list ofelements that such a convention shouldinclude.

13 Vienna, 30 May to 9 June 1995.14 Vienna, 21 to 31 May 1996. 15 Economic and Social Council resolution 1995/11.

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At its fifth session, the Commissiondevoted particular attention to the issueof organized crime in general and to thefollow-up to Naples in particular. On itsrecommendation, the General Assemblyadopted the United Nations Declarationon Crime and Public Security.16 By thisDeclaration, Member States undertook toprotect the security and well-being of alltheir citizens, by taking effective nationalmeasures to combat serious transnationalcrime, including organized crime, illicitdrug and arms trafficking, smuggling ofother illicit articles, organized traffickingin persons, terrorist crimes and thelaundering of proceeds from seriouscrimes. Member States also pledged topromote bilateral, regional, multilateraland global law enforcement cooperationand assistance, while taking measures toprevent support for and the conduct ofoperations of criminal organizations intheir national territories. In addition,Member States agreed to provide, to thefullest extent possible , for effectiveextradition or prosecution of those whoengage in serious transnational crimes inorder to ensure that these criminals findno safe haven.

According to the Declaration, mutualcooperation and assistance in thesem att ers wou ld a lso in c lu de th estrengthening of systems for the sharingof information among Member States,and th e provis ion of b i latera l an dmultilateral technical assistance. Thisc ooper at ion wa s a lso con s i der edi mpor ta nt i n c onn ec t i on w ith th eagreement of States to take steps tostrengthen the overall professionalism oftheir criminal justice, law enforcementand victims assistance systems, as well asrelevant regulatory authorities. MemberStates were urged to become parties assoon as possible to the principal existing

international treaties relating to theva ri ous as pect s o f t he pr ob lem o finternational terrorism, as well as to theinternational drug control conventions.The Declaration called upon States totake measures to improve their ability todetect and interdict the movement acrossborders of those engaged in serioustransnational cr ime, as well as theinstrumentalities of such crime, and toprotect their territorial boundaries. Suchmeas ur es wou ld in c lu de adopt in geffective controls on explosives andagainst il l icit traff icking in certainmaterials and their components that arespec i f i c a l l y des ig ned f o r u se an dmanufacturing of nuclear, biological orch emi ca l wea pons ; s tr eng th en in gsupervision of passport issuance andenhancement of protection againstta mper in g a nd c oun ter fe i t in g ;strengthening enforcement of regulationson illicit trafficking in firearms; andcoordinating measures and enhancinginformation exchange to combat theorganized criminal smuggling of personsacross national borders.

In connection with the control of theproceeds of crime, Member States agreedto a dopt m easu r es t o c omba t th econcealment or disguise of the true originof the proceeds of serious transnationalcrime and the intentional conversion ortrans fer of such proceeds f o r th atpurpose. Member States also agreed torequire adequate record keeping byfinancial and related institutions and thereporting of suspicious transactions andto ensure effective laws and procedures topermit the seizure and forfeiture of theproceeds of serious transnational crime.Member States recognized the need tolimit the application of bank secrecy lawswith respect to criminal operations and toobtain the cooperat ion of f inancialinstitutions in detecting these and other

16 General Assembly resolution 51/60.

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operations, which may be used for thepurpose of money laundering.

Further, Member States agreed tocombat and prohibit corruption andbribery and to consider developingconcerted measures for internationalcooperation to curb corrupt practices, aswell as developing technical expertise toprevent and control corruption.

O n th e r ec ommen dat ion o f th eCommission at its fifth session, theEconomic and Social Council adopted aresolution,17 in which it took note of theBuenos Aires Declaration and requestedthe Secretary-General to continue hisconsultations with Member States on thepossibility of elaborating a convention orc on ven t i ons ag a i ns t o rg an ize dtransnational crime. The Council alsorequested the Secretary-General to assistin the implementation of the NaplesPolitical Declaration and Global ActionPlan and to meet the needs of MemberStates for increased knowledge on thestructure and dynamics of organizedtransnational crime in all its forms, aswell as trends in its development, areas ofactivity and diversification. In addition,the Secretary-General was called upon toassist Member States in reviewingexisting international instruments andexploring the possibility of elaboratingnew ones to strengthen and improvein terna t ional cooper at ion aga instorganized transnational crime and tointensify technical assistance in the formof advisory services and training. TheSecretary-General was also requested toestablish a central repository for nationall eg is la t ion , i nc lu d i ng r eg ul ator ymeasures, on organized transnationalcrime; information on organizationalstructures designed to combat organizedtransnational crime; and instruments for

international cooperation, includingbilateral and multilateral treaties andleg is l at i on t o ens ur e th e irimplementation. For the purpose ofproviding increased technical assistanceto r equest i ng Member S tates , t heSecretary-General was requested todevelop training manuals for specialisedlaw enforcement and invest igat ivepersonnel on action against organizedtransnational crime, taking into accountdifferences in legal systems.

In 1995 and 1996, the issue of theconvention was a topic of discussion anddebate during the annual Commissionsessions but also in other for a, bothwithin and outside the United Nations.The doubts and hesitation that hadresulted in the compromise language ofthe Naples Declaration persisted, eventhough the surveys carried out by theSecretariat showed that the majority ofcountries were favourably disposed to theconvention. In numerous discussions, theissue that appeared to be the mostdifficult was how would the internationalcommunity define organized crime in away that would be acceptable to everyone,desp i te d i f f e r enc es in c on cept s ,perceptions and legal systems. But evenwithin the group of countries which hadbeen the most sceptical, there were signsof at least a change in thinking. TheGroup of Senior Experts, which wasestablished by the Group of Seven MajorIndustrialised Countries and the RussianFederation (what was then known as G7/P8 and since 1998 is referred to as theG8) at Lyon, deserves much of the creditfor this reversal of opinion. The Group’smandate was to explore ways and meansto s trengthen c ooperat ion ag ain sttransnational organized crime. Chairedby Ambassador Lauriola of Italy, theGr ou p pr oduc ed a se t o f f o r tyrecommendations, which set the stage for

17 Economic and Social Council resolution 1996/27.

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much of what has been done since in thefield.

In September 1996, the President ofPo l an d su bm itt ed t o th e G ener a lAssembly the draft of a frameworkconvention against organized crime.18

Poland had been one of the most vocalproponents of the new convention sincethe Naples Conference. Its initiative wasa component of its consistent policy ofsupport for the new instrument, but alsor es ul ted f r om th e Gov er nmen t ’sconviction that the issue was urgent andrequired commensurate action. TheGovernment of Poland was of the viewthat the best way to allay the fears anddispel the doubts expressed by severalc ou nt r ies a bou t th e d i f f i c ul ty o fapproaching the matter was to get themto focus on something in writing. Poland’smethodological approach was sound. Thequestion of the new convention until thattime had been a largely abstract one.Ev er y d iscu ss ion revo lved aroun dwhether the approach to internationalcooperation was more effective at thebilateral and regional level, or whetherthere was tangible benefit to be gained byelevating normative efforts to the globallevel. In the absence of a draft, whichpeople could study and discuss at capitalswith their criminal law and other experts,there was hardly any debate about whatthe contents of a new convention could be.Con sequ en t ly , h ard ly any one wasvisualising the possible benefits of a newinternational binding legal instrument.Poland tried to shift the focus of thed iscuss ion an d stimulate nat ion althinking along the lines of assessingpotential benefits and coming to termswith the individual problems that wouldb e as soc ia ted w ith th e pr oc ess o fobtaining those benefits. Poland alsow an ted t o sh ow th at i so lat ed

manifestations of the type of criminality,which the new instrument would target,had already been the object of previousinternational negotiations. In order toachieve these goals, Poland included inits draft a list of offences, based on theterminology used in other previousinternational conventions.

Poland’s objective about focusing theth in k in g an d d is c us s i ons on th eposs ib i l i ty o f t he c onv en t ion wa sachieved. The General Assembly adopteda resolution in December 1996,19 bywhich it took note of Poland’s proposaland asked the Commission to devotepriority attention to the question of theconvention at its sixth session. Even if onthe face of it that resolution did not givethe green light for the beginning of theprocess towards the new convention, thediscuss ions that preceded its f ina ldrafting were indicative of a change inatti tude. This change ranged fromacceptance of the merit of having a newconvent ion to res ig nat ion to w hatappeared to be inevitable. This latterapproach stemmed from the building andexpanding momentum in favour of theconvention, which began increasing thepolitical cost of its rejection.

On the other hand, the inclusion of thelist of offences in Poland’s draft, andespecially the inclusion of terrorism inthat list, created two problems. First itwas immediately picked up by a numberof countries, which had serious problemswith terrorism. For these countries,including terrorism into a list of offencesusually committed by organized criminalgroups, thus treating terrorism as justanother form of organized crime, was theanswer to their frustrations of manyyears about the lack of progress in

18 See United Nations document A/C.3/51/7.

19 General Assembly resolution 51/120 of 12

December 1996.

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concerted action against terrorism at theinternational level. This is an importantfeature of the development and evolutionof the convention because it was resolvedonly at the very last moment in thenegotiations. Second, including offenceses ta b l i sh ed or de f in ed in o th erconventions created problems for thosecountries that were not Parties to theseconventions.

In preparation for the sixth session ofthe Convention and in order to boost thechances of the convention, the Giovanniand Francesca Falcone Foundation (afoundation established in Palermo in thememory of Judge Giovanni Falcone andhis wife , who was killed with him)organized from 6 to 8 April 1997 inPalermo an in for mal meet in g . A l lmembers of the Commission were invitedto discuss what issues a new conventionshould cover. The meeting in Palermoconfirmed the attitude described earlierb ut a l so sh owed th at w h atev erreservations remained were still to bereckoned with.

The key turning point for the fate ofthe new convention was the sixth sessionof the Commission.20 During that session,the Commission established a workinggroup to deal with the matter of thei mpleme nt at i on o f t he Na p lesDeclaration. The core mandate of thegroup, however, was to discuss thequestion of the convention. Even if, asmentioned earlier, attitudes had begun tochange and even those stil l holdingreservations about whether the newconvention was truly feasible or desirablehad begun to accept the inevitable, thegroup had to tread a fine line. The carefulformulation of the group’s report to theC ommis s i on i s per ha ps t he b estindication of how precarious the whole

question remained. The group reportedth at “ . . . i t was [ its ] sense that i tscontribution would be most useful to theCommission if it would canvass the scopeand content of a convention, rather thanengage in a drafting exercise, whichwould be outside the mandate given bythe Council and the Assembly, and wouldrequire significantly more time than thatavailable. ... In determining the scope andcontent of a convention, the internationalcommunity could draw on the UnitedNations Convention against Illicit Trafficin Narcotic Drugs and PsychotropicSubstances of 1988, but should be able tocome up with new and more innovativeand creative responses . The Grouprecognized that it was desirable todevelop a convention that would be ascomprehensive as poss ib le . In thisconnection, several States indicated thattheir remaining reservations on thee f f e c t iv en ess a nd u se fu ln es s o f aconvention were contingent upon aconvention’s scope of application and themeasures for concerted action that suchan instrument would include. SeveralStates stressed the importance theyattached to the nature of a convention asa framework instrument. One difficultissue was arriving at an acceptabledefinition of organized crime. It wasindicated, however, that this issue wasnot insurmountable, especially in thepresence of a strong and susta inedpolitical will. Several States were of theview that a definition was not necessarilythe most crucial element of a convention,and that the instrument could come intobeing without a definition of organizedcrime. In this connection, it was alsosuggested that the phenomenon oforganized crime was evolving with suchrapidity that a definition would limit thescope of application of a convention, byomitting activities which criminal groupsmay engage in. Other States felt that theabsence of a definition would send the20 Vienna, 28 April to 9 May 1997.

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wrong signal regarding the political willand commitment of the internationalcommunity. In addition, avoiding theissue would eventually create problems inthe implementation of a convention. Inview of all this, concerted efforts to arriveat a solution should be made. ... Theproblem of definition could be solved bylooking at each of its elements separately.It was suggested that a first step towardsa de f i n i t ion mig ht b e t o u se th edefinitions of offences contained in otherinternational instruments. .... There wasa ls o d is cu s s ion a bou t w h eth er inapproaching the definition, the focusshould be on the transnational aspects oforganized crime or on organized crime ingeneral. It was pointed out that themandate of the Commission was relatedto transnational organized crime but thatthe i ssue required further ser iousc on si dera t i on i n t h e con te xt o fdetermining the overal l scope of ac on ven t i on. In th e c ont ext o f th ediscussion on whether a conventionshould include a list of offences, someStates expressed their support for theinclusion of terrorist acts in such a list.Most States were of a contrary view,recalling the initiatives currently underway in the United Nations and otherforums on terrorism and the conclusionsof the Commission at its fifth session. TheGroup agreed that it would be useful tofocus on widely accepted constituentelements of organized crime. In thediscussion that ensued, the elementsi dent i f i ed in c l uded s ome f o r m o forganization; continuity; the use ofintimidation and violence; a hierarchicalstructure of groups, with division oflabour; the pursuit of profit; and thepurpose of exercising influence on thepublic, the media and political structures.The Group decided that the best way toproceed for the purpose of advancing theissue was to seek common ground,utilising as many previous contributions

as possible, and building on the positiveexperience and valuable work done atother forums, such as the EuropeanUnion and the Senior Experts Group onTransnational Organized Crime. Thedr af t Un it ed N at i ons f ra mew orkco nv ent ion a ga in st o r ga ni zedtransnational crime (A/C.3/51/7) was auseful point of departure and a good basisfor further work. In this connection, theGroup decided to discuss matters relatedto international cooperation in criminalmatters that would form an essential partof an international legally bindinginstrument. The overriding concernwould be to equip the internationalcommunity with an effective instrumentto strengthen action against organizedcrime.

In spite of this careful language, it wasevident that the tide had changed. In fact,severa l delegat ions began putt in gproposals on the table that went beyond amere discussion of the desirability orfeasibility of the convention. The issuebecame not whether there would be a newconvention but what should the newconvention contain and how soon itshould be developed. It is interesting tonote that some of these proposals weresubmitted in the form of “non-papers”, inor der to a f f o rd t he i r au t hor s th epossibility to keep the option of backingout ope n. Th e Gr ou p ag r eed t ha tconsiderable work was required on theissue of the convention. For this purpose,i t pr opos ed t ha t an open -en dedintergovernmental group of expertsshould be established to consider allpending proposals related to the issue ofconventions, as well as all elementsthereof and appropriate cooperationmodalities and mechanisms.

Con t i nu in g i ts e f f o r ts f o r th eimplementation of the Naples PoliticalDeclaration and Global Action Plan, the

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Crime Prevention and Criminal JusticeDivision organized a regional MinisterialWorkshop in Dakar, Senegal, for thecountries of the African region in July1997. That was the second follow-upmin ist er ia l meet i ng a f t e r th e on eorganized in 1995 in Buenos Aires. Thepurpose of the meetings was to sustainthe commitment and political will, whichdev e lop i ng c ou n tr ies h ad c l ear lydisplayed in Naples, and to further buildon it in order to promote the idea of theconvention. In unanimously adopting theD ak ar Dec lar at i on , th e M in ist ersreaffirmed their commitment to fightagainst organized transnational crimeand reiterated their collective politicalw i l l t o s upp ort t he e f f o r ts o f th eCommission towards the elaboration ofan international convention againstorganized transnat ion al cr ime. Inaddition, the Ministers reviewed andapproved two regional projects f ortechnical cooperation, aimed at providingassistance to the Governments of theregion in strengthening their capacitiest o prev en t an d c ont ro l o rg an ize dtransnational crime.

O n th e r ec ommen dat ion o f th eCommission at its sixth session, theGeneral Assembly estab lished21 anintergovernmental group of experts,which met from 2 to 6 February 1998 inWarsaw. The group’s mandate was toelaborate a preliminary draft of a possiblei nt ern at ion al c on ven t i on a ga in storganized transnational crime, on thebasis of the contributions and proposalsthat Governments had made at the sixthsession of the Commission, or suchdocuments as the forty recommendationsof the G7/P8 Lyon Group.

The Warsaw meeting was the firstoccasion on which the question of thedesirability or possibility of the newcon v ent ion w as l a id t o r es t . Th einter govern menta l wor kin g gr oupreported that “there was broad consensuson the desirability of a convention againstorganized transnational crime. There wasmuch to be gained from this internationallegal instrument, which would not onlybuild on, but also go beyond, othersuccessful efforts to deal with pressingissues of national and internationalconcern in a multilateral context.”

The Group then went on to develop a“list of options” for the convention, whichamounted to a first draft containingseveral options for various provisions.The term “list of options” was deliberatelyused as a way of satisfying those few whower e s t i l l r e lu ct an t to spea k o f a“preliminary draft”, considering this termas determining in an unequivocal mannerthe resolution of the issue of whether thenegotiations for the new conventionshould be authorised. It is interesting tonote that before embarking on the veryloose drafting exercise, the Group putdown a number of general principles,which it understood would guide “theefforts to elaborate a new internationalcon v ent ion . ” Th e m ain pr in c ip l esemanating from the general discussion,were as follows:

“(a) While the contours of organizedcrime were generally understood, therecontinued to be divergences of a legalnature that made it difficult to reach acomprehensive definition. Engaging insu ch an endea vou r m igh t r equ ir econsiderable time, whereas there was ageneral feeling of the urgency of action inthe direction of elaborating the newconvention. Organized crime continued toevolve and manifest itself in differentwa ys . As th er e w as a g en era l

21 See General Assembly resolution 52/85 of 12

December 1997.

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understanding of criminal organizations,efforts to determine the scope of thec on ven t i on sh oul d bu i l d on th atunderstanding, focusing action under thenew convention against those groups.

(b) Certain States were of the view thatattempting to list all possible criminalactivities in which criminal organizationswere likely to engage would be difficultand might lead to a convention that wastoo narrow. Such an approach entailedtwo major risks. First, it would ab initiopr e j ud ic e t he a pp l i c a b i l i ty an deffectiveness of the convention, as a listcould not be all-inclusive and would mostprobably exclude emerging forms ofcriminal activity. Secondly, it wouldpresent considerable difficulties withr eg ar d t o o t her pr ovis ion s o f th econvention, as specif ic crimes oftendemanded specific responses. The need todeal with specif ic offences might beaccommodated by additional protocols,which could be negotiated separately, notaffecting the comprehensiveness of thec on ven t i on or i t oper ab i l i ty an de ffectiveness . Furthermore, it wasobserved that such an approach mightpr ov e m ore c on duc iv e to a mor eexpeditious negotiating process thatwould make the new convention a realityin a shorter period of time.

(c) An alternative approach that waspr opos ed mig h t be ba sed on th eseriousness of the offence, which might bedetermined on the basis of the penaltyforeseen in national legislation and ar equ ir emen t th at t h e o f f en c e b ecommitted in connection with a criminalorganization, association or conspiracy.That approach was not free of difficulties,as the concept of seriousness was not asmeaningful in all national systems.However, there was merit in furtherconsidering such an approach as apotential solution, especially combining it

with a focus on the organized nature ofthe offence in question, as well as lookingat elements that would necessitateinternational cooperation, including itstransnational reach.

(d) There was agreement that theconvention should include practicalmeasures of international cooperation,such as judicial cooperation, mutualas s is ta nc e in c r imi na l mat ter s ,extradition, law enforcement cooperation,wi tn ess pr o tec t i on an d tec h ni ca lassistance. The convention should be acapacity-building instrument for Statesan d th e Uni ted Na t ion s a l ike i nconnection with the collection, analysisand exchange of information, as well asthe provision of assistance. Furthermore,the c on vent ion should expand thepredicate offences for the purpose ofaction against money-laundering, while itshould include provisions creating theobligation of States to confiscate illicitlyacquired assets and regulate banksecrecy. The convention should alsoinclude provisions to prevent organizedcrime , such as measures to reduceopportunities for criminal organizationsor limit their ability to engage in certainactivities. The convention should haveprovisions that require legislative actionon the part of Governments, in order tofac ili tate meaningful and effectiveco opera t io n . Cer ta in de leg at ion sexpressed strong opposition to a “seriouscrimes convention” as opposed to aninstrument focused on organized crime.

(e) Other international instruments,especially the International Conventionfor th e Su ppr ess ion o f Ter ror is tBombings (General Assembly resolution52/164, annex) and the United NationsConvention against Ill icit Traffic inNar c o t i c Dr u gs an d P s y ch otr op icSubstances of 1988, were useful sourcesof inspiration. They contained provisions

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of direct relevance to the new convention.Some of those provisions could providesolutions to similar problems, or serve asa point of departure in order to go beyondtheir scope, taking into account newneeds and developments. In addition, theconvention should empower the lawenforcement authorities of States partiesto employ extraordinary investigativetech niqu es (e .g . wire - tapp ing an dundercover operations), consistent withconstitutional safeguards.

( f) Finally, the convention shouldincorporate appropriate safeguards forthe protection of human rights and toensure compatibility with fundamentalnational legal principles.”

I n Ma rc h 19 98 , th e C ent re fo rIn tern at ion al Cri me Pr event i on 2 2

organized the third regional ministerialevent in follow-up to the Naples PoliticalDeclaration and Global Action Plan. Thist ime, the meeting was convened inManila, was attended by countries of theAsian and Pacific region and adopted theManila Declaration on the Preventionand Control of Transnational Crime, inwhich renewed support for the conventionwas expressed.

Th e prop osa l s o f t he W ar s awIn ter g over n men ta l G r oup w er esubmitted to the Commission at itsseventh session.23 During that session,the traditional in-sessional workinggroup on the implementation of theNaples Declarat ion began what inessence was a first reading of the draftprepared in Warsaw. That same workinggroup also made recommendations to the

Commission, which formed the basis for adra f t r eso l ut ion , f o r ev ent ua lcons iderat ion and adopt ion by theGeneral Assembly, by which an Ad HocCommittee would be established toelaborate the new instrument.24 One keyelement of the debate on that draftresolution was whether it would include adeadline for the work of the Ad HocCommittee. Many delegations thoughtthis would be premature and a deadlinewas not included in the text. However,everyone began speaking in terms ofmaking every effort possible to completeth e w ork by th e en d o f 20 00 . Th esymbolism was certainly one motive forthe choice of the unofficial deadline.Other motives included the desire ofmany countries to ensure that embarkingon negotiations was not an open-endedendeavour, not wishing to see the issueembroiled in endless debate, as had beenth e c as e wit h o t her int ern at iona lconventions. Another, perhaps morepowerful, reason was the prominent placeon the international agenda that actionagainst transnational organized crimehad acquired. Linked with this was therealization that attempting to negotiatesu ch a m aj or i nt ern at ion al l ega linstrument was fraught with all kinds ofconceptual and political difficulties,which had the potential to erode thepo l i t i c a l wi l l t ha t ma de th ecommencement o f the negotiationspossible.

The negotiations of the draft resolutionthat would give the green light for theelaboration of the new convention tobegin were conditioned by an interestingdevelopment . Faced with press ingpolitical priorities, or frustrated by otherprocesses, some countries had begunidentifying individual issues, which they

22 As part of the reform of the United Nations, the

Crime Prevention and Criminal Justice Division

was re cons t i tuted in to th e Cent re fo r

International Crime Prevention in October 1997.23 Vienna, 21 to 30 April 1998. 24 General Assembly resolution 53/111.

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t hou g ht mer i t ed at ten t i on at th einternational normative level.

Argentina had for quite some timefavoured action, in the form of a newconvention, against trafficking in minors.It had tried to push forward the initiativein the context of the work done in Genevaon additional protocols to the Conventionon the Rights of the Child. However,progress there was frustratingly slow,mainly because of the fact that theproposed new protocol approached theis sue fr om a pure ly h uman r ig htsperspective. Therefore, Argentina decidedto give the whole matter a new spin andsee whether the international communitywas ready to deal with it in the context ofcriminal justice. At the seventh session ofthe Commission, Argentina proposed thedrafting of a new convention againsttrafficking in minors, citing the growingevidence of this becoming an activity inwhich organized criminal groups wereengaged.

Austria was experiencing an increasein incidents of smuggling of migrants. Itsefforts to cope with the problem led it todiscovered that it was not alone in havingto deal with more and more cases ofillegal entry of migrants, organized bycriminal gangs from various regions ofthe world. As part of its consolidatedeffort to see the issue rising in theinternational agenda, and building onprevious work on smuggling of migrantsdo ne by t he Com mis s i on an d th eSecretariat, Austria presented to theCommission the draft of a conventionagainst the i l l ega l tra ff icking andtransport of migrants. At about the sametime, Italy was developing new policies inresponse to the inf lux of Albanianmigrants who were being transportedacross the Adriatic by organized crimegroups. Italy was also shocked by thes in k in g o f a sh ip c ar r yi ng i l l eg a l

immigrants off its coast. Consequently,Italy undertook an initiative at theInternational Maritime Organization(IMO) aimed at the issuance of directivesregarding trafficking of migrants by sea.When i t found out about Austria ’sinitiative at the Commission, Italy joinedforces and presented a proposed protocolto deal with trafficking by sea, to beattached to the proposed Austr ianconvention.

The Crime Prevention and CriminalJustice Division had been mandated tocarry out a study on firearms regulation.The study had been assigned to theDivision on the initiative of Japan andhad been carried out with voluntaryfunding provided by that country. Thestudy (which was eventually published in1998) was before the Commission at itsseventh session. The Governments ofCanada and Japan thought that, as aresult of the conclusions of the study, theis su e o f ac t ion a ga in st th e i l l i c i tmanufacturing of and trafficking infirearms had sufficiently matured tomerit attention at the normative level.They thus proposed a new instrument onthat subject, which could draw upon andbe inspired by the Organizat ion ofAmer ic an Sta tes C onv en t ion o nFirearms, which had recently beenconcluded.

The Commission was thus found infront of a major decision. Whereas it hadbeen engaged in discussing whether thet i me wa s r i pe to as k t h at th einternational community embark on thenegotiations of a new convention, it wasnow fac ed wi th t he pr ospec t o fauthorizing negotiations for four suchinstruments. All of the proposed subjectsdeserved attention, having risen, in oneway or another, to the top of the politicalagenda. However, there was also thequestion of limited resources, especially

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of the United Nations, in supporting, bothsubstantively and organizationally, thenegotiations. In addition, there was thepolitical issue of whether authorization tocommence negotiations on four separatec on ven t i ons w oul d n o t res u l t indispersing ef f orts and diluting thepol i t i ca l commitment required fo rsuccess. Then, there was the issue ofwh ic h o f these instru ments wou ldcommand priority. The question facingdelegations was whether prioritising wasfeasible and, if so, what would be thecriteria for determining which of thesepr opos ed in st ru men ts wou ld b eelaborated first. The political decisionreached at the end was to link the morer ecent in i t iat i ves to t he pr opos edc on ven t i on ag ai ns t t r an sn a t ion alor g an ized c r ime . Th e ta lk amon gdelegat ions was a long the l ines o fnegotiating protocols to the convention oneach of these subjects. Not everyone washappy with that solution, mainly becauseof the lower status of a protocol comparedwith a full-fledged convention. As aresult, the draft resolution proposed bythe Commission for adoption by theGeneral Assembly did not speak ofprotocols but of additional instruments,leaving their status open for furtherconsiderat ion at a more opportunemoment.

O n th e r ec ommen dat ion o f th eCommission, the General Assemblydecided “to establish an open-endedintergovernmental ad hoc committee fort he pu rp ose o f e lab ora t in g acomprehensive international conventionagainst transnational organized crimeand of discussing the elaboration, asappropriate, of international instrumentsaddressing trafficking in women andc h i ldr en , com bat in g th e i l l i c i tmanufacturing of and trafficking infirearms, their parts and components andammunition, and illegal trafficking in

and transporting of migrants, includingby sea.”25 The Assembly also decided toaccept th e recommen dat ion of theCommission to elect Luigi Lauriola ofItaly as the Chairman of the Ad HocCommittee.

As mentioned earlier, the discussionsthat led to the f inal version of th isresolution revolved around establishing adead l ine f or the c omplet ion of thenegotiations. Even if the draft did notinclude such a deadline, planning for thework of the Ad Hoc Committee had to becarr ied out taking into account thecommonly shared understanding aboutthe total time available to it to completeits tasks. At the seventh session of theCommission, the delegation of Argentinacame forward with an invitation to host ameet ing of the Ad Hoc Committee.However, the resolution remained adraft, as it was intended for adoption bythe Genera l Assembly. The annualsessions of the General Assembly begin inSeptember and the Third Committee,which is the committee responsible forcrime prevention and criminal justicematters, does not take up relevantrecommendations before October. Legallyspeaking, the Ad Hoc Committee wouldnot come into ex istence be fore theGeneral Assembly had adopted theresolution establishing it. A paragraphwas included in the resolution to dealwith this institutional problem, whileassuring that the time between May andOctober would be productively used. TheGenera l Assembly “we lcomed withappreciation the offer of the Governmento f Ar gen t ina to hos t a n i nfor ma lprep ar ator y m eet in g o f th eintergovernmental ad hoc committee atBuenos A ir es , so as to en sur e t hecontinuation without interruption of

25 General Assembly resolution 53/111 of 9

December 1998.

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w or k on t he e la bor at ion o f th econvention.” In order to further advancet he wor k , th e C ha ir man i nv i t edinterested countries to form an informalgroup of “Friends of the Chair”, whichwould explore mainly procedural matterst o pa ve th e w ay fo r th e A d H ocCommittee.

The “Friends of the Chair” held ameeting in July 1998 in Rome, wherethey began discussing a host of issuessurrounding the new convention. One oft hes e wa s th e t i meta ble f o r th enegotiations, in order to ensure that thework could finish by the end of 2000.Even if the terms of reference of thegroup were oriented primarily towardsprocedure, several substantive mattersbegan to be ventilated by delegations. Itis important to note that the size of thegroup kept increasing. Wishing not to letanyone out, the Chairman of the Ad HocCommittee had specifically indicated thatthe group was open-ended. As countriess ta rt ed com in g to t e rm s wi th th eimplications of the negotiations, theyjoined the group in order to participate indecisions that could have a bearing on theprocess.

The meeting in Buenos Aires was heldfrom 28 August to 3 September 1998. Itpicked up where the Commission had leftoff in going through the Warsaw text byway of a first reading. Already at thisearly stage, delegations started beefingup the text with new proposals on mostmajor issues that it was supposed tocover. Also at this early stage, one of thequestions that was intensely debated wasthe list of offences and whether such a listwould make reference to terrorism.Perh aps most importan t ly f o r th enegotiation process, the Buenos Airesmeeting marked the formation of a coregroup of delegates, who were experts intheir fields and shared considerable

experience from previous negotiations.One important feature of this core groupwas that it was highly participatory, inthe sense that it included representativesfrom virtually all regions and all legalsystems of the world. The formation ofth is c or e gr ou p b r oug ht wi th i t agradually increasing sense of ownershipregarding the text , which is a keyelement of the success of the endeavour.

The group of “Friends of the Chair”held two more meetings, one in themargins of the Buenos Aires meeting andanother in November 1998 in Vienna. Itscontribution was considerable especiallyin mapp in g t he r oad t owa rd s th ecompletion of the process and discussingin a very informal way other proceduralmatters, including the question of the AdHoc Committee’s Bureau.

The Ad Hoc Committee was officiallyestablished in December 1998 and heldits first session in Vienna in January19 99 . I t f in a l i zed th e t ext o f th eConvention at its tenth session in July2000 and the text of the Protocols againstTrafficking in Persons, Especially Womenand Children and against Smuggling ofMigrants at its eleventh session inOctober 2000. The Ad Hoc Committeetried very hard but did not manage toovercome dif ferences impeding thefinalization of the text of the thirdProtocol, against Illicit Manufacturing ofand Trafficking in Firearms. Therefore, itscheduled another session (its twelfth) forFebr uar y /Mar ch 2001 , in o rder tocomplete this task. After a very intenseweek, the Committee’s efforts werecrowned with the successful conclusion ofthe negotiations for the third Protocol,which completed the package that theinternational community had set out toconclude only two years before.