THE GLOBAL SITUATION OF TRANSNATIONAL ORGANIZEDCRIME, THE DECISION OF THE INTERNATIONAL
COMMUNITY TO DEVELOP AN INTERNATIONALCONVENTION AND THE NEGOTIATION PROCESS
Dimitri Vlassis*
I. TRANSNATIONAL ORGANIZEDCRIME IN PERSPECTIVE
T he thre at po se d to natio nal andinternational security by transnational
crime, in all its forms and manifestations,is not the inadvertent by-product of longterm trends. On the contrary, this threat
is a n ine vita b le c on se q ue nce of theactivities of individuals and organizations
a s t he y c o r r u p t s t at e in s t it u t io ns ,undermine the rule of law, threaten the
integrity of financial and commercial
sectors of society, contravene legal andsocial norms and conventions, transgressnational sovereignty and violate national
borders. New opportunities offered by the
globalization of trade and communications
have been exploited eagerly and effectively
by criminals, leaving law enforcement
trailing behind and working to match theinventiveness, adaptability and resilienceo f cr im inal o rgan iz a tion s tha t ha ve
become transnational in both thought anddeed.
The toll of crime has becom efrightening. Not to mention the misery it
leaves in its wake, the financial damage
to societies is staggering. The economic
price exacted on nations is enormous,
while its social and hidden human costs* Crime Prevention and Criminal Justice Officer,
Secretary of the AD HOC Committee for the
Elaboration of the United Nations Convention

are even higher. In addition to traditionaland “street” crime, the consequences oforganized crime present real and present
da nge rs to p ro gr es s a nd a b r a ke todevelopment. Violence associated withthis form of crime is extending its reachfar beyond national frontiers. Organizedcrimina l groups are spread ing theiroperations around the globe and a reengaging in a variety of activities that
range from the traditional to the modern
with 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 a ny legitima tebusiness. Overall, the annual profits oforganized crime are estimated, according
to some sources, at one trillion dollars
wo r ld - wi d e ; al m o st a s m u ch as th e
United States annual federal budget.
Moreover, the export of precious raw
materials, including chemical, biologicaland nuclear material, is increasingly
attracting the attention, and often fallingin to t h e h a n d s o f o r g a n iz e d c ri m e .
Through its interfaces with other licit andillicit activitie s, o rganized crim e isinfiltrating national economies, taking
advantage of the difficulties of following
the trail of criminal proceeds. It has
b e c o m e c le a r t ha t o n ly b y ta c k li ng
organized crime in a concerted mannerinroads can be made into a problem thatexceeds the capacity of national
mechanisms operating alone.

Against Transnational Organized Crime, United
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RESOURCE MATERIAL SERIES No. 59
Developing countries and emerging
democracies are becoming a target fororganized criminal groups opera tingacross borders, because of theirvulnerabilities, while their institutions
are either young or in the process of being
built. Often, the sophisticated modus
operandi of these groups is no match tothe criminal justice systems of developing
countries and countries with economies
in transition. The need for foreign capitalto give new life to the economy and assist
t he se co un tr ie s in e nte r ing t od a y ’s
c o m p e ti t i v e a n d d e m a n d i n g g l o b a lmarket, frequently obscures the longterm threat posed by the investment ofcriminal proceeds. Criminal groups are
keen to enter developing countries andeconomies in transition, not only becauseof their potential, but also because of thedecreased risks involved. The advantages
t h a t s uc h g r o u p s e n jo y , d u e to t h e
s i z e a bl e a m o unts of m o ney a t t h eir
disposal and their ability to eliminate
competition through intimidation andviolence, make risks that would daunt
any legitimate business perfectly
acceptable. The consolidation of theirpower places in grave danger the growing
economies of those countries, particularly
in terms of their future development,
their competitiveness in the international
arena, and their stability.
Money laundering is a vital componento f all fo rm s of organiz ed crim e. The
infiltration of legal financial markets andthe attempts of organized crime to control
sectors of national economies through thelaundering of its illicit proceeds continue
to re prese nt g rave thre ats fo r theinternational community and for national
and international financial systems. Free
trade and high-speed telecommunications
make it easier to engage in multiple
a ctivities and launder money a crossnational borders, with an estimated one
b illion dollars in crime profits w ire-

476

transferred through the world financial
markets every day. In addition toconcealing wealth and lau nderin gproceeds, organized criminal groups areturning to “borderline” economic
endeavours, while diversifying theiroperations in response to a principle thathas been driving international businessfor ever: reduce risks a nd maxim ize
profitability. Since these types of crime
often involve no violence, they offer the
additional advantage of not drawing
public attention, which puts increased
pressure on national a uthorities foraction. Such activities come with thepotential for pow er, which organizedc ri m e h a s n e v e r sh u n ne d . A n o t he r
feature in these types of crime is that thesuccessful engagement of criminals in
economic crimes is often viewed by the
public as an act of cunning and evenbravery. This attitude amply
demonstrates the corrosive effects thatsuch crimes have on the social fabric. It isf u n d a m e n ta l th a t t h i s a t t i t u d e b ereversed, because it can prove equally or
more dan gerou s th an th e offen ces
themselves.
Novel threats d emand novel
combinations of expertise and novel
operational capabilities. If theinternational community is to responde f f e c ti v e ly t o t h e t h r e a ts p o se d b ytransnational criminal organizations,then policy solutions need to be not only
comprehensive and well-coordinated, butalso highly im aginative. Str ate gie s
should take full account of the nature of
the challenge. On the grounds that it
takes a network to defeat a network,emphasis should be given not simply toextend ing the formalities of law
enforcement and judicial cooperation, butalso to building a transnational networkof coo rd ina ted mea sures that w ould
eventuall y b e global. An effective
concerted approach should also take into

119TH INTERNATIONAL TRAINING COURSE
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account the risk management strategies
of criminal organizations and should
initiate appropriate action to reduce orovercome them. The responses should be
the converse of the criminalorganizations. 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 m ultila teralapproach offers distinct advantages and ahigher probability of success. Equallyimportant is the targeting of the assets ofcriminal organizations, focusing less on
the money laundering process as suchand mo re on the uncovering andforfeiture of the assets accrued by theseorganizations. States must reflect very
seriously on the impact of organizedtransnational crime on the lives andeconomic activity of their citizens. It is
im p e ra ti ve to p ro m o te w or ld w id e aculture of legality and tolerance, insteadof accepting a culture of lawlessness andviolence, which dangerously threatens
national institutions and their principal
foundation: global values. Policy- anddecision-makers, and leaders must begin,
as a matter of urgency, to think in termsof new partnerships to safeguard global
values and prevent organized crime andmoney laundering from impeding thequest of countries for growth, stability
and steady progress towards democracy.
Throughout the world, there isrecognition of the need to develop more
effective, ideally global, strategies for theprevention and control of organized crimein all its forms and manifestations. The
task before the international community
is, however, even greater, because thedevelopment of better and more effectives o l ut i o n s i s no t t h e o n l y ne e d ; t h einternational community must reassess
the very nature and dimensions of the
problem, and the policies that can serve

the common purpose of dealing with it.
States must also reflect very seriously onth e im pa ct o f crim e in gen era l, a ndorganiz ed transnational crime inparticular, on the lives and economic
activity 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 to
re as se ss in te r es ts an d lo o k be y on d
traditional roles and stereotypes. If this is
d o n e , i t is a l m o st c e r ta i n t h a t t h einternational community will discoverthat the public and private sectors sharemuch more than was thought. They sharenot o nly c om m on inte re sts bu t alsoc o m m o n v a l u e s. T h e in t e r n a t i o n a lcommunity must begin, as a matter ofurg en cy, to think in terms of n ew
partnerships to safeguard these values
and protect mutual interests.
II. UNITED NATIONS EFFORTS TO
STRENGTHEN INTERNATIONAL
COOPERATION AGAINSTORGANIZED CRIME: THE EARLYYEARS
The work of the United Nations tostrengthen international cooperation
against o rga nize d crime d a tes backtwenty-five years. The issue in its various
aspects 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 its
esta blishm ent. 1 Thi s deb at e a nd i t s
results reflect the changing perceptions
and comprehension of the problem over
several decades. It must also be viewed as
1

The Tenth United Nations Congress on the
Pr e ve ntio n o f Cr im e a nd the Tr ea tme nt o f
Offenders was held in Vienna from 10 to 17 April
2000.

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RESOURCE MATERIAL SERIES No. 59
a series of steps, as a sustained course in
the direction of raising awareness amongpo licy- and decision-m akers andchallenging the conventional thinking
about crime prevention and criminal
justice matters. The process must be
viewed in perspective and in context. The
United Nations is a global organization,with a steadily increasing membership,especially after the end of the Cold War.
In this environment, there are various
and m ultiple po litical c once rns anddifferences in political and substantive
a p p ro a ch e s t o p r o b l e m s. D o m ina nt
among
the
concerns
remainssafeguarding sovereignty, which is formany smaller developing countries andcountries with economies in transition (oremerging democracies) the last bastion ofnational integrity and identity. Criminal
justice matters are at the core ofsovereignty concerns, being perceived as
essentially domestic in nature, touchingas they are on institutions ranging fromnational constitutions to legal regimes
and systems.
The Fifth United Nations Congress on
the Prevention of Crime and theTreatment of Offenders, held in 1975,
examined the “Changes in Forms andDimensionsofC riminality—
T ra nsna tiona l an d Na tion al” und er
agenda item 5. In what could today, withth e be ne f it o f h ind sight, be te rm e dprophetic, the Congress focussed on crimeas business at the national andtransnational levels: organized crime,
white-collar crime and corruption. Crime
as business was recognized to pose a more
serious threat to society and nationale co no mie s than traditional form s o fcrime. While it was a serious problem inmany developed countries, the national
welfare and economic development of theentire society in developing countries wasfound to be drastically affected by such

478

criminal conduct as bribery, price-fixing,
smuggling and currency offences.
In 1980, the Sixth United Nations
Congress, under agenda item 5 entitled“Crime and the Abuse of Power: Offences
and Offenders beyond the Reach of theLaw,” added new elements to theinternational perception of organizedcrime. Among these offences were thosecrimes with respect to which the law
enforcement agencies were relatively
powerless because the circumstances
under which they had been committed
were such as to decrease the likelihood of
the ir b ein g r ep o rte d o r p ro sec ute d.
Organized crime, bribery and corruption
were among the first examples listed.
The Seventh Congress considered theissue further in 1985 under its Topic 1,
entitled “New dimensions of criminality
and crime prevention in the context ofdevelopment: challenges for the future.”
The Congress emphasised that multiple
illicit operations carried out byinternational criminal networks
represented a major challenge to nationallaw enforcement and to international
cooperation.
In 1990, within the framework of its
Topic III, entitled “Effective national andinternational action against: (a)Organized crime; (b) Terrorist criminal
activities,” the Eighth Congress
ex a m in ed the p ro b le m o f o rga n ize dtransnational crime in the light of new
historic developments. The rapid increasein the number of independent countries,
together with the growing expansion ofcrim ina l a ctivitie s b eyo nd na tio na lborders, had created the need for new
international institutions, which could
introduce a measure of order and enhancethe effectiveness of crime prevention
efforts. On the recommendation of theCongress, the General Assembly focused

119TH INTERNATIONAL TRAINING COURSE
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on strengthening internationalc o o p e r a t io n b y a d o p t in g t h e M o d e lTreaties on Extradition, 2 on Mutual
Assista nce in Criminal M atters, 3 on
Transfer of proce edings in Criminal
Matters4 and on Transfer of Supervisionof Offenders Conditionally Sentenced or
Conditionally Released. 5 The Congress
also adopted a set of guidelines againstorganized crime in resolution 24, which
was welcomed by the General Assemblyin resolution 45/121. In resolution 45/123,
the General Assembly urged Member
States to implement these guidelines andinvited them to make available to theSecretary-General their national
legislation against organized crime andmoney laundering.
The Eighth Congress also marked the
beginning of a new era for the United
Nations Crime Prevention and Criminal
Justice Programme. At first glance, thechanges that were precipitated by therecommendations of the Congress, andthe action that followed at the legislative
level, were of a mostly institutionaln a t u r e . Q u i t e t o th e c o n t r a r y , th esignificance of these changes lies in thef a c t t h a t S t a t e s c o n f r o n t e d , a l b e itimperfectly, one of the core concerns of
the inte rnation al com m unity. Th e
question was to what extent the United
Nations, faced with radically changed
political and historical realities, would
credibly perform its primary function of
being a policy-making forum andmedium, while simultaneously providing
developing countries with the means to
2

See General Assembly resolution 45/116, of 14
December 1990.

3

See General Assembly resolution 45/117, of 14

effectively cooperate with their peers. On
th e r e c o m m e n d a t i o n o f th e E i g h thCongress, the Secretary-Generalconvened the Ministerial Meeting on theCreation of an Effective United Nations
Crime Prevention and Criminal Justice
Programme, which was held in Versailles
fro m 21 t o 2 3 No vem be r 1 9 9 1. 6 The
M e e ti n g d e v e l o p e d a S t a t e m e n t o f
Principles and Programme of Action,
which the General Assembly adopted in
December 1991. 7 In this document theAssembly determined that the revamped
Programme would focus its activities on
specific areas of priority, and direct its
energies toward providing timely andpractical assistance to States at theirrequest. Action against organized crime
figured prominently among the areas ofpriority attention f or the new
Programme. On the institutional level,
the Assembly decided that the Committee
on Crime Prevention and Control, thegoverni ng body of the Pr og rammec o m p o s e d o f e x p e r ts n o m i n a t e d b y
Govern ments bu t s ervin g in theirindividual capacity, would cease to exist.
In its place, the Assembly established theCommission on Crime Prevention andCriminal Justice, a functional
Commission of the Economic and Social
Council, composed of the representativesof 40 Governments, thus ensuring direct
go ve r n m e n t a l i nv o l v e m e n t i n b o thdecision-making and oversight of theProgramme’s activities.
The Commission was established andheld its first session in 1992. One of its
first endeavours was to flesh out further
the general guidelines established by theGeneral A ssembly regarding theprioritie s of the P rogra mm e. O n its

December 1990.
4

See General Assembly resolution 45/118, of 14

6

December 1990.
5

See General Assembly resolution 45/119, of 14
December 1990.

See General Assembly resolution 45/108, of 14
December 1990.

7

See General Assembly resolution 46/152, of 18
December 1991.

479

RESOURCE MATERIAL SERIES No. 59
re co mm end a tio n, the E cono m ic a nd
Social Council determined that one of thepriority themes that should guide thework of the Commission and the United
Nations Crime Prevention and Criminal
Justice Programme would be: “nationala nd t ra ns n ati o na l crim e, or gan iz e dcrime, economic crime, including money
laundering, and the role of criminal law
in the protection of the environment”. 8
The Council also took note of therecommendations of two Ad Hoc expert
group meetings, which had been held in
1991, in Smolenice, Slovak Republic, andin Suzd al, Ru ssian F ed era tion, andr eque sted th e Secr etary- Ge ner al tocontinue the analysis of the impact oforganized criminal activities upon society
at large. 9 The Commission, also at its
first session, requested the SecretaryGeneral to examine the possibility of
coordinating efforts made at themultilateral level against the launderingof proceed s of crime, a nd to propose
mea ns for technical as sis tan ce t orequesting Member States in draftingl eg isl ation a nd in t rai nin g of law
enforcement personnel, as well as indeveloping regional, subregional andbilateral cooperation.10
III. THE ROAD TO THE
CONVENTION
The direct governmental involvement
in setting the agenda for the United
Nations Crime Prevention and Criminal
Justice Programme, assured through theestablishment of the Commission, helped
give new impetus to the importance ofinternational action against organized8

See Economic and Social Council resolution 1992/
22.

9

See Economic and Social Council resolution 1992/
23.

10 SeeCommission on Crime Prevention

Criminal Justice resolution 1/2.

480

and

crime. In its first couple of sessions, theCommission engaged in intense work,
reviewing and assessing the activities of
the Pro gra mm e until that time andpaving the road f or the future.
International concerted action had been
identified as a key component of success
aga inst o rga niz ed crime, which wa ssorely missing at the time. This was oneof the c on clusio ns w hic h on e o f theprominent figures of the fight againstorganized crime, Judge Giovanni Falcone,
had derived from all his efforts against
the Mafia. Judge Giovanni Falcone is
known for sweeping successes againstorganiz ed crime in Italy throughm e t ic u lo u s w o r k , e x p a n s i o n o f h i sinvestigations into fields previously
beyond the scope of traditional
prosecutorial wo rk, and throughcooperation with the authorities of othercountries. Wha t is perhaps less wellknown is that about two months before
his tragic death, Judge Falcone led his
country’s delegation to the inauguralsessio n of the C om m ission. I n what
probably was his last public address at aninternational forum, he called for moremeaningful action at the international
level against organized crime, in order toaddress the problem of national
authorities trying to cope with aphenomenon that was no longer national.
In e xpla ining w hy he tho ught mo reinternational 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’s
death. In doing so, it built on the efforts of
the United Nations and the awarenessand interest displayed by theinternational community through thesignificant work at the policy-making

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
level that it had accomplished in its shortexistence. The result was theorganization of one of the most significant
e ve n ts in the hist or y o f th e U ni te dNations Crime Prevention and Criminal
Justice Programm e. The World
Ministerial Conference on OrganizedTransnational Crime, held in Naples,from 21–23 November 1994 was also oneof the best attended events ever, withover 2000 participants and delegations
f r o m 1 4 2 S ta te s ( 8 6 of t he m a t th e
M inisteria l leve l, w hile others w ere
represented by their Heads of State or
Government).
The
C onfe rence
unanimously adopted the Naples Political
D ecla rati on a nd G l ob al A ction P la nagainst Organized Transnational
Crime, 11 which wa s approved b y theGeneral Assembly one month later.12
The Naples Political Declaration and
Global Action Plan emphasised the needfor urgent global action against organizedtransnational crime, focussing on the
structural characteristics of criminalorganizations. Countries were called
upon to begin the process of harmonising
their legislation, while special attention
was paid to the need for countries toensure that their criminal justice systems
had the capacity to prevent and control
organized transnational crime in all its
manifesta tions. Equal attention wasgiven to the need for the international
community, particularly donor countries
a nd f inancing institutions, to assist
developing countries and countries witheconomies in transition to bridge the gap
between the capacity of their criminal
justice system s in ge nera l, an d law
enforcement authorities in particular,
and the ability of organized criminalgroups to shift their operations from11 See United Nations document A/49/748.
12 General

Assembly resolution 49/159 of 23

December 1994.

activity to activity and to elude efforts
aga inst them by using sophistica ted
methods of operation.
The Naples Political Declaration and
Global Action Plan stressed the need forthe international community to arrive ata generally agreed concept of organizedcrime as a basis for more compatible
national responses and more effective
international cooperation. Particularattention was given to more effective
bilateral and multilateral cooperation
against organized transnational crime,
asking the C ommission on C rime
Pre vent i o n a nd C ri m ina l J us t i ce t o
examine the possibility for a convention
or conventions against organizedtransnational crime. Furthermore, theprevention and control of the laundering
and use of the proceeds of crime wereconsidered essential elements of any
international effort.
T h e n e g o t i a t io n s f o r t h e N a p l e s
Political Declaration and Global Action
Plan were long and difficult. One issue ofcontention was whether the document
would issue a clea r m andate for theelaboration of a new convention against
transnational organized crime. Most of
the members of what is known in the
United Nations as the Western European
and O thers G roup (a regional groupwhich includes all Western European
countries as well as Australia, Canada,
New Zealand and the United States) were
sceptical, if not openly negative to theidea of a convention. The reason was thatthey regarded the subject as too thorny toapproach, especially since it involved anumber of conceptual and legal
difficulties, with definitions figuringprom inently am ong them . The seconceptual and legal problems, coupledwith the inherent difficulty ofnegotiations with the full membership of
the United Nations around the table, led

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RESOURCE MATERIAL SERIES No. 59
these countries to conclude that the final
p ro d uc t w a s lik ely to be the low est
common denominator. An instrument
without “teeth” was something that was
not desirable and perhaps not worth thet im e a nd e f f o rt f o r m o st d e ve lo p e dcountries. A further concern stemmed
from the perception that the more or lessquite well developed networks of regionaland bilateral arrangem ents thatd ev elop ed c ountr ie s ha d d eve lop ed ,especially in the field of international
cooperation in criminal matters, wassufficiently operational and functional tode al with organized crim e. These
countries thought that a new convention
m ig ht p la c e th os e a r ra n ge m e nts in
j e o p a r d y , e s p e c i a ll y r e g a r d i n g t h epresumably stronger provisions they
contained.
At the other end of the spectrum stoodthe vast majority of developing countries
that thought the idea of a new convention
was a good one for several reasons. First,
the prospect of a universal instrument
held appeal for developing countries
because of the nature of the problem they
were beginning to witness crossing into
their territories and affecting their efforts
towards development. In this regard,
many developing countries and countries
w i t h e c o n o m i e s i n t r a n si t i o n w e r eexperiencing sentiments bordering on
genuine shock because they had no way of
a ccurately estima ting the m alicio us
potential of organized criminal groups.
For many years, they were under the
impression that organized crime was the
problem of industrialised countries. Mostof them were also under the impressionthat organized crime was synonymous todrug trafficking and that issue had been
the object of numerous international andregional initiatives and instruments,
w hi ch p ro v id e d a c e rt a in d e gr e e o f
gui da nce a nd coo rd ina t ed re sp ons e.
Second, the possibility of dealing with a482

problem in the context of a global forum,such as the United Nations, has always
been favoured by developing countries
because of the relative parity, which that
forum affords them. Strengthening thisconviction is the tendency of United
Nations in most of its entities to favour
decisions by consensus and to avoid, if at
all possible, voting. Consensus decisionmaking allows more room for theconcerns of smaller countries to be taken
into consideration and reflected in the
final outcome of the endeavour. Third, as
any instrument against transnationalorganized crime would dwell at length on
methods of international cooperation,
deve loping countries saw a newconvention as the way of addressing
pressing needs in that area. Lacking theresources, both human and financial, as
well as the negotiating power, developing
countries and emerging democracies had
quickly recognized their inability toembark upon the development ofextensive networks of bilateralagreements or arrangements in the fieldof international cooperation in criminal
matters. An international convention
offered the potential of making up for thisinability and of filling the gaps theseco untries had identified in thecooperation they needed.
In view of all this, developing countries
and countries with econom ies intransition, as a block, threw their support
behind the idea of a convention in Naples
and tried to use the Declaration as thevehicle for promoting its elaboration. The
final language of the Declaration was acom prom ise solution, w hich w as 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, Ambassador
Luigi Lauriola (who is now serving as the
Chairman of the Ad Hoc Committee on

119TH INTERNATIONAL TRAINING COURSE
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the Elaboration of the Convention). It is
important to keep this background in
m ind, whe n the elabo ration of the
C onve ntion itself will be d iscussed ,because over time and with changing
circumstances and political agendas,
there has been considerable evolution ofthat position.
The Commission on Crime Prevention
and Criminal Justice followed up on theimplementation of the Naples Political
Declaration and Global Action Plan at its
f ourth 1 3 and fifth 1 4 sessions. On its
recommendation at its fourth session, theEconomic and Social Council requested
the Secretariat to perform the following
functions: (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 transnational
crime and on the responses of States tothis problem, for the purpose of assisting
the international community to increase
its knowledge on the matter; (c) to submit
to Member States at the following sessionof the Commission a proposal on thecreation of a central repository of existinglegislative and regulatory measures andinformation on organizational structuresdesigned to combat organize dt r a n s n a ti o n a l c r i m e ; ( d ) to s u b m it
proposals to the C ommission for thedevelopment of practical models andpractical guidelines for substantive andprocedural legislation in order to assist
developing countries and countries intransition; (e) to provide advisory services
and technical assistance to requesting
Member States in needs assessment,
capacity-building and training, as well as
in the implementation of the Naples
Political Declaration and Global Action
Plan; and (f) to join efforts with otherrelevant international organizations inorder to reinforce common regulatory andenforcement strategies in the area of
preventio n and control of money
laundering, and to assist requesting
States in assessing their needs in treaty
development and the development ofcrim in a l ju stice inf rastr uct ure andhum an reso urce s. 1 5 A n in-se ssio nal
intergovernmental working group wasestablished at the fifth session of theC o m m i ssi o n t o r e v ie w t he v ie w s o f
Governme nts on a convention orconventions, as well as the proposals of
the Secretariat described under (c) and(d) above. The (then) Crime Prevention
and Criminal Justice Division, on thebasis of information provided by Member
States, prepared a report for theCommission’s consideration at its fifthsession, in which the actual situation oforganiz ed crime w as review ed. Most
responding Member States expressed
their favourable disposition towards aconvention
againstorganized
transnational crime.
In N o vem be r 1995, th e Divisionorganiz ed a regional MinisterialWorkshop on the Follow-up to the Naples
Political Declaration and Global Action
Pl a n, ho st e d b y the G o v e rn m e nt o fArgentina in Buenos Aires. The
Workshop adopted the B uenos Aires
Declaration on Prevention and Control ofOrganized Transnational Crime. The
co untrie s o f L a tin A m e rica a n d the
Caribbean expressed their support for
expe ditio us fo llo w -up to the Na ple s
Political Declaration and Global Action
Plan and endorsed the idea of developing
a convention against organizedtransnational crime, offering a list ofelements that such a convention should
include.

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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RESOURCE MATERIAL SERIES No. 59
At its fifth session, the Commission
devoted particular attention to the issueof organized crime in general and to thefollow-up to Naples in particular. On its
recommendation, the General Assembly
adopted the United Nations Declaration
on Crime and Public Security. 16 By thisDeclaration, Member States undertook toprotect the security and well-being of all
their citizens, by taking effective national
measures to combat serious transnational
crime, including organized crime, illicit
drug and arms trafficking, smuggling ofother illicit articles, organized trafficking
in persons, terrorist crim es and thelaundering of proceeds from serio us
crimes. Member States also pledged topromote bilateral, regional, multilateraland global law enforcement cooperation
and 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 thef ullest extent p ossib le , fo r ef fec tive
extradition or prosecution of those who
engage in serious transnational crimes inorder to ensure that these criminals findno safe haven.
According to the Declaration, mutual
co ope ratio n a nd a ss i s ta nce i n t hesem atters would also include thestrengthening of systems for the sharing
of information among Member States,
and th e pro vision of bilateral an dmultilateral technical assistance. This
cooperation was also considered
important in connection with thea greement of S tates to ta ke steps tostrengthen the overall professionalism of
their criminal justice, law enforcement
and victims assistance systems, as well as
relevant regulatory authorities. Member
States were urged to become parties assoon as possible to the principal existing
16 General Assembly resolution 51/60.

484international treaties relating to thevarious aspects of the problem ofinternational 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 acrossb ord ers o f tho se enga ged in serio ustransn ation a l cr im e, as we ll as the
instrumentalities of such crime, and toprotect their territorial boundaries. Suchmeasures would include adopting
ef fective c ontrols on explosives a nd
against illicit traff icking in certain
materials and their components that are
specifically designed for use andmanufacturing of nuclear, biological orchemical weapons; strengthening
supervision of passport issuance ande nh a n c e m e n t o f p r o te c ti o n a g a i ns t
tampering andcounterfeiting;strengthening enforcement of regulations
on illicit trafficking in firearms; andcoordinating measures and enhancing
informa tion excha nge t o com ba t theorganized criminal smuggling of persons
across national borders.
In connection with the control of theproceeds of crime, Member States agreed
to adopt measures to combat theconcealment or disguise of the true originof the proceeds of serious transnational
crime and the intentional conversion ortrans fer of such proceeds for th at
purpose. Member States also agreed toreq uire a d eq uate reco rd k ee ping b yfinancial 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 too b t a in th e co o p e r a t io n o f f in a n ci a linstitutions in detecting these and other119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
operations, which may be used for the
purpose of money laundering.
Further, M emb er States agreed tocom ba t and prohibit co rrup tion a ndb rib e ry and t o c o n sid e r d e ve lo p in gconcerted measures for international
cooperation to curb corrupt practices, aswell as developing technical expertise toprevent and control corruption.
On the recommendation of the
C om mission a t its fif th se ssion, theEconomic and Social Council adopted aresolution, 17 in which it took note of the
Buenos Aires Declaration and requested
the Secretary-General to continue his
consultations with Member States on thepossibility of elaborating a convention orconventions against organize dtransnational crime. The Council also
requested the Secretary-General to assist
in the implementation of the Naples
Political Declaration and Global Action
Plan and to meet the needs of Member
States for increased knowledge on the
structure 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 toa ssi st M e m b e r S t a te s i n r e vi e w in gexisting international instruments andexploring the possibility of elaborating
new ones to strengthen and improvein terna tional cooperation aga inst
organized transnational crime and tointensify technical assistance in the formof advisory services and training. The
Secretary-General was also requested toestablish a central repository for national
legislation, including regulatory
measures, on organized transnational
crime; information on organizational
structures designed to combat organizedtransnational crime; and instruments forinternational cooperation, including
bilateral and multilateral treaties andlegislation
toensuretheir
im plem enta tio n. F or the purp ose ofproviding increased technical assistanceto requesting Member States, theSecretary-G enera l w as req uested todevelop training manuals for specialised
law enforcement and investigative
personnel 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 Commission
sessions but also in other for a, bothwithin and outside the United Nations.
The doubts and he sitation that had
resulted in the compromise language of
the Naples Declaration persisted, eventhough the surveys carried out by the
Secretariat showed that the majority ofcountries were favourably disposed to theconvention. In numerous discussions, theissu e t ha t a pp e a r e d t o b e th e m o s tdifficult was how would the international
community define organized crime in a
way that would be acceptable to everyone,despite d ifferences in concepts,
perceptions and legal systems. But even
within the group of countries which had
been the most sceptical, there were signs
of at least a change in thinking. The
Group of Senior Experts, which wa s
established by the Group of Seven Major
Industrialised 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 credit
for this reversal of opinion. The Group’s
mandate was to explore ways and means
to stre ngthe n c oo peratio n ag ain st
transnational organized crime. Chairedby Ambassador Lauriola of Italy, theGroup produced a set of forty
recommendations, which set the stage for

17 Economic and Social Council resolution 1996/27.

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RESOURCE MATERIAL SERIES No. 59
much of what has been done since in thefield.
In September 1996, the President of
Poland subm itted to the GeneralA s se m b ly t he d ra f t o f a fr a m e w o r kconvention against organized crime. 18
Poland had been one of the most vocal
proponents of the new convention since
the Naples Conference. Its initiative wasa component of its consistent policy of
support for the new instrument, but also
res ul ted from the Government ’s
conviction that the issue was urgent andre q uire d com me nsura te a ctio n. T he
Government of Poland was of the viewthat the best way to allay the fears anddispel the doubts expressed by several
countries about the difficulty of
approaching the matter was to get them
to focus on something in writing. Poland’s
methodological approach was sound. The
question of the new convention until thattime had been a largely abstract one.
Ev ery discu ssion revolved aroun dwhether the approach to international
cooperation was more effective at thebilateral and regional level, or whether
there was tangible benefit to be gained byelevating normative efforts to the global
level. In the absence of a draft, whichpeople could study and discuss at capitals
with their criminal law and other experts,
there was hardly any debate about what
the contents of a new convention could be.
Con sequ en tly , h ardly any one wasvisualising the possible benefits of a newinternational binding legal instrument.
Poland tried to shift the focus of thed i s c u s s i o n a n d s ti m u l a te n a t i o n a lthinking along the lines of assessing
potential benefits and coming to termswith the individual problems that would
be associated with the process ofobtaining those benefits. Poland also
wanted to show that isolated

manifestations of the type of criminality,
which the new instrument would target,
had already been the object of previous
international negotiations. In order toachieve these goals, Poland included inits draft a list of offences, based on thete rm ino log y use d in o the r pr ev iou sinternational conventions.
Poland’s objective about focusing thethinking and discussions on thepossibility of the convention wasachieved. The General Assembly adopted
a reso lution in D ecember 19 96 , 1 9 b ywhich it took note of Poland’s proposal
and asked the Commission to devote
priority attention to the question of theconvention at its sixth session. Even if on
the face of it that resolution did not givethe green light for the beginning of theprocess towards the new convention, thed is c us s io n s t ha t p re c e d e d it s f i na ldrafting were indicative of a change ina t t i t ud e . T h i s c h a n g e r a ng e d f r o m
acceptance of the merit of having a newc o n v e n t i o n t o r e s ig n a t i o n t o w h a t
appeared 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 it
was immediately picked up by a numberof countries, which had serious problems
with 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 many
ye a r s a b o ut the la c k o f p r o gre ss i n
19 General

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

486

Assembly

December 1996.

resolution

51/120of

12

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
concerted action against terrorism at theinternational level. This is an importantfeature of the development and evolutionof the convention because it was resolved
only at the very la st mom ent in thenegotiations. Second, including offences
established or defined in otherconventions created problems for thosecountries that were not Parties to theseconventions.
In preparation for the sixth session of
the Convention and in order to boost the
chances of the convention, the Giovanniand Francesca Falcone Foundation (afoundation established in Palermo in thememory of Judge Giovanni Falcone andh is w if e , w ho w a s k ill e d w it h h im )o rgan iz ed f rom 6 t o 8 A pri l 1 99 7 i n
P alermo an in for mal meetin g. All
members of the Commission were invited
to discuss what issues a new convention
should cover. The meeting in Palermo
confirmed the attitude described earlier
but also showed that whateverreservations remained were still to be
reckoned with.
The key turning point for the fate of
the new convention was the sixth sessionof the Commission.20 During that session,
the Commission established a working
group to deal with the ma tter of theimpleme ntation of the Naples
Declaration. The core mandate of theg ro up , h o we ve r, was to d iscu ss th equestion of the convention. Even if, as
mentioned earlier, attitudes had begun tochange and even tho se still holding
reserva tions a bout whether the newconvention was truly feasible or desirable
had begun to accept the inevitable, thegroup had to tread a fine line. The careful
formulation of the group’s report to theCommission is perhaps the bestindication of how precarious the whole
20 Vienna, 28 April to 9 May 1997.

question remained. The group reported
th a t “ . . . i t w a s [ it s ] s e n s e t h a t i t scontribution would be most useful to theCommission if it would canvass the scopeand content of a convention, rather thanenga ge in a drafting exercise, which
would be outside the mandate given by
the Council and the Assembly, and would
require significantly more time than thatavailable. ... In determining the scope andcontent of a convention, the international
community could draw on the United
Nations Convention against Illicit Trafficin N a rco tic Drugs a nd Psychotrop ic
Substances of 1988, but should be able tocome up with new and more innovative
a nd c r ea tiv e r e sp o n se s . T h e G ro u p
re c og niz ed th at it w a s d e sir able todevelop a convention that would be as
co m p r e h e ns iv e a s p o ss ib le . I n th i sconnection, several States indicated that
their rema ining rese rvatio ns on theeffectiveness and usefulness of aco nv e ntio n w er e c o ntin ge nt u p o n aconvention’s scope of application and themeasures for concerted action that suchan instrument would include. Several
Sta tes stressed the importance they
attached to the nature of a convention asa framework instrument. One difficult
issue w as a rriving at an acce pta ble
definition of organized crime. It w asindicated, however, that this issue was
not insurmountable, especially in thep re se nc e o f a str on g a n d su sta ine dpolitical will. Several States were of theview that a definition was not necessarily
the most crucial element of a convention,and that the instrument could come into
being without a definition of organizedcrime. In this connection, it was also
su g g e s te d t h a t t h e p h e n o m e no n o forganized crime was evolving with suchrapidity that a definition would limit thescope of application of a convention, byomitting activities which criminal groups
may engage in. Other States felt that theabsence of a definition would send the487

RESOURCE MATERIAL SERIES No. 59
wrong signal regarding the political will
and commitment of the international
community. In addition, avoiding theissue would eventually create problems in
the implementation of a convention. In
view of all this, concerted efforts to arrive
at a solution should be made. ... The
problem of definition could be solved bylooking at each of its elements separately.
It was suggested that a first step towards
a definition might be to use thedefinitions of offences contained in otherinternational instruments. .... There wasalso discussion about whether inapproaching the definition, the focus
should be on the transnational aspects oforganized crime or on organized crime ingenera l. It w as pointed out that the
mandate of the Commission was related
to transnational organized crime but thatt h e i s su e r e q u i r e d f u r t h e r s e r i o u s
consideration in the conte xt ofd e t e r m i n in g t h e o v e r a l l sc o p e o f aconvention.In the context of thed iscussio n on whe the r a convention
should include a list of offences, someStates expressed their support for the
inclusion of terrorist acts in such a list.
Most States were of a contrary view,recalling the initiatives currently under
way in the United Nations and otherforums on terrorism and the conclusionsof the Commission at its fifth session. The
Group agreed that it would be useful tofocus on w idely accepted constituent
e le ments of orga niz ed crim e. I n thediscussion that ensued, the elements
identified included some form ofo rga niza tion; con tinuity; the use o f
intimidation and violence; a hierarchicalstructure of groups, with division oflabour; the pursuit of profit; and the
purpose of exercising influence on the
public, the media and political structures.
The Group decided that the best way toproceed for the purpose of advancing thei s su e w a s to se e k c o m m o n g r o u n d ,utilising as many previous contributions488

as possible, and building on the positive
experience and valuable work done atother fo rums, such as the Europea nUnion and the Senior Experts Group on
Transnational Organized Crime. The
draft United N ations frameworkco nvention
againstorganized
transnational crime (A/C.3/51/7) was auseful point of departure and a good basis
for further work. In this connection, theGroup decided to discuss matters related
to international cooperation in criminal
matters that would form an essential parto f an in te r na tio n a l le g a lly bin d in g
instrument. T he ove rriding conce rnwould b e to eq uip the interna tiona lcommunity with an effective instrument
to strengthen action against organizedcrime.
In spite of this careful language, it wasevident that the tide had changed. In fact,s e v e r a l d e l e g a t i o n s b e g a n p u t t in g
proposals on the table that went beyond amere discussion of the desirability or
feasibility of the convention. The issue
became not whether there would be a newconvention but w hat should the newcon vention con ta in and h ow so on it
should be developed. It is interesting tonote that some of these proposals were
submitted in the form of “non-papers”, inorder to afford their authors thepossibility to keep the option of backing
out ope n. The Group agreed thatconsiderable work was required on theissue of the convention. For this purpose,
it proposed that an open-ended
inte rgovernm enta l group of exp erts
should be established to consider all
pending proposals related to the issue ofco nventions, as w ell a s all elem ents
thereof a nd a pprop riate cooperation
modalities and mechanisms.
Continuing its efforts for the
implementation of the Naples Political
Declaration and Global Action Plan, the119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Crime Prevention and Criminal JusticeDivision organized a regional MinisterialWorkshop in Dakar, Senegal, for thecountries of the African region in July
1997 . That was the second follow-up
ministerial meeting after the one
organized in 1995 in Buenos Aires. The
purpose of the meetings was to sustain
the commitment and political will, whichdeveloping countries had clearly
displayed in Naples, and to further build
on it in order to promote the idea of theconvention. In unanimously adopting theDakar Declaration, the M inisters
reaffirmed their commitment to fightagainst organized transnational crimeand reiterated their collective political
will to supp ort the efforts of theCommission towards the elaboration of
a n i nt erna tiona l convention a ga inst
o rganized transnation al crim e. In
addition, the Ministers reviewed anda p p r o v e d tw o r e gi o n a l p r o j e c t s f o rtechnical cooperation, aimed at providing
assistance to the Governments of theregion in strengthening their capacities
to prevent and control organize dtransnational crime.
On the recommendation of theCommission at its sixth session, theG en e ra l A sse m b ly e stab lishe d 2 1 a n
intergovernmental group of experts,
which met from 2 to 6 February 1998 in
Warsaw. The group’s mandate was toelaborate a preliminary draft of a possible
international convention againstorganized transnational crime, on thebasis of the contributions and proposals
that Governments had made at the sixth
se ssi on o f th e C o m m issio n, o r su ch
documents as the forty recommendationsof the G7/P8 Lyon Group.

21 SeeGeneral Assembly resolution 52/85 of 12

December 1997.

The Warsaw meeting w as the firstoccasion on which the question of thedesirability or possibility of the newconvention was laid to rest. Theintergovernmental working groupreported that “there was broad consensus
on the desirability of a convention againstorganized transnational crime. There wasmuch to be gained from this international
legal instrument, which would not onlyb ui l d o n, b ut a l s o g o b e y on d , o th er
successful efforts to deal with pressing
issues of national a nd interna tiona lconcern in a multilateral context.”
The Group then went on to develop a“list of options” for the convention, whichamounted to a first draft containing
several options for various provisions.
The term “list of options” was deliberately
used as a way of satisfying those few who
were still reluctant to speak of a“preliminary draft”, considering this termas determining in an unequivocal manner
the resolution of the issue of whether thene gotia tions for the new conve ntion
should be authorised. It is interesting tonote that before embarking on the veryloose drafting exercise, the Group put
down a number of general principles,
which it understood would guide “theefforts to elaborate a new international
convention.” The m ain principles
emanating from the general discussion,
were as follows:“(a) While the contours of organizedcrime were generally understood, there
continued to be divergences of a legal
nature that made it difficult to reach acomprehensive definition. Engaging insuch an endeavour m ight requireconsiderable time, whereas there was ageneral feeling of the urgency of action in
the direction of elaborating the newconvention. Organized crime continued to
evolve and manifest itself in different
ways. As there was a general489

RESOURCE MATERIAL SERIES No. 59
understanding of criminal organizations,
efforts to determine the scope of theconvention should build on that
understanding, focusing action under the
new convention against those groups.

with a focus on the organized nature of
the offence in question, as well as looking
at ele m e nts th at w ou ld n ec es sitate
international cooperation, including its
transnational reach.

(b) Certain States were of the view that
attempting to list all possible criminal
activities in which criminal organizations
were likely to engage would be difficultand might lead to a convention that was
too narrow. Such an approach entailed
two major risks. First, it would ab initio
prejud ice the applicability andeffectiveness of the convention, as a list
could not be all-inclusive and would mostp rob ab ly e xclude em erging f orms o fcriminal activity. Secondly, it would
present considerable difficulties withregard to other provisions of theco nventio n, a s spec if ic crim es o ften
demanded specific responses. The need tod eal w ith specif ic of fences might b e
accommodated by additional protocols,
which could be negotiated separately, notaffecting the comprehensiveness of theconvention or it operability ande f f e c ti ve ne ss . F u rt h e r m o r e , it w a s
observed that such an approach mightprove m ore conducive to a more
expeditious negotiating process thatwould make the new convention a reality
in a shorter period of time.

(d) There w as agreem ent that theconvention should include pra ctica lmeasures of international cooperation,such as judicial cooperation, mutual
assistance in criminal matters,
extradition, law enforcement cooperation,
witness protection and technicalassistance. The convention should be acapacity-building instrument for States
and the United Nations alike inconnection with the collection, analysis
and exchange of information, as well as
the provision of assistance. Furthermore,
the con vention should expand thepredicate offences for the purpose ofaction against money-laundering, while itshould include provisions creating theobligation of States to confiscate illicitly
a c q ui r e d a s s e t s a n d re g u l a t e b a nk
se cre cy. The convention should a lso
include provisions to prevent organizedc ri m e , su c h a s m e a s u re s t o r e d u c eopportunities for criminal organizations
or limit their ability to engage in certain
activities. The convention should haveprovisions that require legislative action
on the part of Governments, in order tof a c ili ta t e m e a ni ng f ul a nd e f f e c ti ve
co operatio n. Certain delegations
expressed strong opposition to a “serious
crimes convention” as opposed to a n
instrument focused on organized crime.

(c) An alternative approach that was
proposed might be based on theseriousness of the offence, which might bedetermined on the basis of the penalty
foreseen in national legislation and arequirement that the offence becommitted in connection with a criminalorganization, association or conspiracy.
That approach was not free of difficulties,
as the concept of seriousness was not asm eaningful in all national syste ms.
However, there was merit in further
c o n s id e r i ng s uc h a n a p p r o a ch a s apotential solution, especially combining it490(e) Other international instruments,
especially the International Convention
for the Suppression of Terrorist
Bombings (General Assembly resolution
52/164, annex) and the United Nations
Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic
Substances of 1988, were useful sourcesof inspiration. They contained provisions

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
of direct relevance to the new convention.
Some of those provisions could provide
solutions to similar problems, or serve asa point of departure in order to go beyond
their scope, taking into a ccount newneeds and developments. In addition, theconventio n sho uld e mp ow er the la w
enforcement authorities of States parties
to employ extraordinary investigative
tech niqu es (e.g . wire-tapping an dundercover operations), consistent withconstitutional safeguards.
( f) Fina lly, the co nve ntion shouldincorporate appropriate safeguards forthe protection of human rights and toensure compatibility with fundamental
national legal principles.”I n March 1998, the C entre forInternational Crime Prevention22
organized the third regional ministerial
event in follow-up to the Naples Political
Declaration and Global Action Plan. Thist im e , t he m e e tin g w a s c o nv en e d in
Manila, was attended by countries of the
Asian and Pacific region and adopted theManila Declaration on the Prevention
and Control of Transnational Crime, inwhich renewed support for the convention
was expressed.
The prop osals of the Warsaw
Intergovernmental Group weresubm itte d to the C o mm issio n at its
seventh session. 23 During that session,
the tra ditiona l in-sessiona l w orking
group on the imp le me nta tio n of the
N a p l e s D e c la r a t io n b e g a n w h a t i nessence was a first reading of the draft
prepared in Warsaw. That same working
group also made recommendations to the
22 As part of the reform of the United Nations, theCrime Prevention and Criminal Justice Division

Commission, which formed the basis for adraft resolution, for eventual
c o n s i d e r a t io n a n d a d o p t i o n b y t h eGeneral Assembly, by which an Ad Hoc
C om m itte e w o uld b e e sta b lish ed toelaborate the new instrument.24 One key
elem e nt of the d eb a te on th at dra f t
resolution was whether it would include adead line f or the w ork of the Ad Hoc
Committee. Many delegations thought
this would be premature and a deadline
was not included in the text. However,everyone began speaking in terms ofmaking every effort possible to complete
the work by the end of 2000. The
symbolism was certainly one motive forthe choice of the unofficial deadline.
Other motives included the desire ofmany countries to ensure that embarking
on negotiations was not an open-ended
endeavour, not wishing to see the issue
embroiled in endless debate, as had been
the case with other international
conventions. Another, perhaps more
powerful, reason was the prominent placeon the international agenda that action
against transnational organized crime
had acquired. Linked with this was therealization that attempting to negotiate
such a m ajor international legal
instrument was fraught with all kinds ofconceptual and political difficulties,
which had the potential to erode thepolitical will that made theco m m e n c e m e n t o f th e n e go tia ti o n spossible.
The negotiations of the draft resolutionthat would give the green light for theelaboration of the new convention to
begin were conditioned by an interestingd e v e l o p m e n t . F a c e d w i t h p r e s s in gpolitical priorities, or frustrated by otherprocesses, some countries had begun
identifying individual issues, which they

was re co ns ti tute d in to th e Ce nt re fo r
International Crime Prevention in October 1997.
23 Vienna, 21 to 30 April 1998.

24 General Assembly resolution 53/111.

491

RESOURCE MATERIAL SERIES No. 59
thought merited attention at theinternational normative level.
Argentina had for quite some time
favoured 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 Geneva
on additional protocols to the Convention
on the Rights of the Child. How ever,progress there was frustratingly slow,
m a inly b ec a use o f the f a ct tha t th e
proposed new protocol approached theis sue fr om a purely h uman rig hts
perspective. Therefore, Argentina decided
to give the whole matter a new spin andsee whether the international community
was ready to deal with it in the context ofcriminal justice. At the seventh session of
the Commission, Argentina proposed thedrafting of a new convention against
trafficking in minors, citing the growing
evidence of this becoming an activity inwhich organized criminal groups were
engaged.
Austria was experiencing an increase
in incidents of smuggling of migrants. Its
efforts to cope with the problem led it to
discovered that it was not alone in having
to d ea l with m ore and more cases ofillegal entry of migrants, organized bycriminal gangs from various regions of
the world. As part of its consolidatede f fo rt to s ee the issu e risin g in th einternational agenda, and building on
previous work on smuggling of migrants
do ne by the Com mission and theSecretariat, Austria presented to theCommission the draft of a conventiona g a in s t th e i ll e g a l tr a f f ic k i n g a n dtransport of migrants. At about the sametime, Italy was developing new policies inr e sp o n se t o t he in f lu x o f A l ba n ia nmigrants who were being transported
across the Adriatic by organized crimegroups. Italy was also shocked by thesinking of a ship carrying illegal

492

immigrants off its coast. Consequently,
Italy undertoo k an initiative at theInternational Maritime Organization(IMO) aimed at the issuance of directives
regarding trafficking of migrants by sea.
W h e n i t f o u nd o u t a b o u t A u s t ri a ’ s
initiative at the Commission, Italy joined
forces and presented a proposed protocol
to deal with trafficking by sea, to bea t t a c h e d t o t h e p r o p o s e d A u s tr i a nconvention.
The Crime Prevention and Criminal
Justice Division had been mandated tocarry out a study on firearms regulation.
The study had b een a ssigne d to theDivision on the initiative of Japan andhad been carried out w ith voluntary
funding provided by that country. The
study (which was eventually published in1998) was before the Commission at its
seventh session. The Governments ofCanada and Japan thought that, as aresult of the conclusions of the study, theissue of action against the illicit
ma nufacturing of and tra fficking infirearms had sufficiently matured tomerit attention at the normative level.
They thus proposed a new instrument onthat subject, which could draw upon andb e i ns p i re d b y th e O rg a n i z a t io n o f
American States Convention o n
F ire a r m s, w h ich h a d re c e ntly b e e n
concluded.
The Commission was thus found in
front of a major decision. Whereas it had
been engaged in discussing whether thetime was ripe to ask that theinternational community embark on thenegotiations of a new convention, it was
now faced with the prospect ofauthorizing negotiations for four such
instruments. All of the proposed subjects
deserved attention, having risen, in one
way or another, to the top of the political
agenda. However, there was also thequestion of limited resources, especially

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSof the United Nations, in supporting, bothsubstantively and organizationally, thenegotiations. In addition, there was thepolitical issue of whether authorization tocommence negotiations on four separate
conventions would not result ind i sp e r sin g e f f or ts a n d d ilu ti ng th epolitical commitment required forsuccess. Then, there was the issue ofw h ic h o f t h e s e i n s t r u m e n t s w o u l dcommand priority. The question facing
delegations was whether prioritising was
feasible and, if so, what would be thecriteria for determining which of these
proposed instruments would be
elaborated first. The political decision
reached at the end was to link the morer ecent in itiati ves to t he pr opos ed
convention against transnationalorganized crime. The talk amongd e l e g a t i o n s w a s a l o n g t h e l in e s o fnegotiating protocols to the convention oneach of these subjects. Not everyone was
happy with that solution, mainly becauseof the lower status of a protocol comparedw ith a full-fledged convention. As aresult, the draft resolution proposed by
the C omm ission f or ad optio n by theG e ne r a l A ss em b ly d id n o t sp e a k o fprotocols but of additional instruments,
leaving their status open for further
c o n si d e r a t io n a t a m o r e o p p o r tu n emoment.
On the recommendation of theC o mm ission , the G ene ra l A sse mb ly
de cided “to e stab lish an open-ende dintergovernmental ad hoc committee forthe purp ose of e laborating acomprehensive international convention
against transnational organized crimeand of discussing the elaboration, as
appropriate, of international instruments
addressing trafficking in women andchildren, com bating the illicit
m anufa cturing o f a nd t ra ff icki ng i nfirearms, their parts and components andammunition, and illegal trafficking inand transporting of migrants, including
by sea.”25 The Assembly also decided toaccept th e recommen dation of theCommission to elect Luigi Lauriola of
Italy as the Chairman of the Ad Hoc
Committee.
As mentioned earlier, the discussions
that le d to the f inal ver sio n o f th isresolution revolved around establishing a
d e a d l in e f o r t h e c o m p l e t i o n o f t h enegotiations. Even if the draft did notinclude such a deadline, planning for thework of the Ad Hoc Committee had to be
ca rr ie d o ut taking into ac co unt thecommonly shared understanding about
the total time available to it to complete
its tasks. At the seventh session of theCommission, the delegation of Argentina
came forward with an invitation to host am e e t in g o f t h e A d H o c C o m m i tt e e .
Howe ver, the resolution re mained adraft, as it was intended for adoption by
th e G e n e ra l A ss e m b l y. T he a nn ua lsessions of the General Assembly begin in
September and the Third Committee,
which is the committee responsible forcrime prevention and criminal justicem a tt er s, d o e s no t t a k e u p re l ev a n t
recommendations before October. Legally
speaking, the Ad Hoc Committee wouldn o t c o m e in t o e x i s te n c e be f o r e t h e
Ge ne r a l A ss e m b ly h a d ad o pt e d t heresolution establishing it. A paragraph
was included in the resolution to deal
with this institutional problem, while
assuring that the time between May andOctober would be productively used. The
G e n e r a l A s s e m b l y “ w e lc o m e d w i th
appreciation the offer of the Governmentof Argentina to host an informal
prep aratory
meetingoftheintergovernmental ad hoc committee at
Buenos Aires , so as to en sure t hecontinuation without interruption of
25 General

Assembly

resolution

53/111of9

December 1998.

493

RESOURCE MATERIAL SERIES No. 59
work on the elaboration of theconvention.” In order to further advancethe work, the Chairman invitedinterested countries to form an informalgroup of “Friends of the Chair”, which
would explore mainly procedural matters
to pave the way for the Ad Hoc
Committee.
The “Friends of the Cha ir” held ameeting in July 1998 in Rome, where
they began discussing a host of issues
surrounding the new convention. One ofthese was the timetable for thenegotiations, in order to ensure that thework could finish by the end of 2000.
Even if the terms of reference of thegroup were oriented primarily towards
procedure, several substantive mattersbegan to be ventilated by delegations. It
is important to note that the size of thegroup kept increasing. Wishing not to letanyone out, the Chairman of the Ad Hoc
Committee had specifically indicated thatthe group was open-ended. As countries
started com ing to term s with the
implications 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. It
picked up where the Commission had left
off in going through the Warsaw text by
way of a first reading. Already at thisearly stage, delegations started beefing
up 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 was
the list of offences and whether such a list
wo uld m ak e ref er ence to ter rorism .
Perhaps most importantly for thenegotiation process, the Buenos Aires
meeting marked the formation of a coregroup of delegates, who were experts intheir field s and shared considerable

494

experience from previous negotiations.
One important feature of this core group
was that it was highly participatory, inthe sense that it included representatives
from virtually all regions and all legal
systems of the world. The formation ofthis core group brought with it a
gradually increasing sense of ownership
regarding the text, which is a key
element of the success of the endeavour.
The group of “Friends of the Chair”
held two m o re me etings, o ne in themargins of the Buenos Aires meeting andanother in November 1998 in Vienna. Its
contribution was considerable especiallyin mapp ing the road toward s thecompletion of the process and discussing
in a very informal way other procedural
matters, including the question of the Ad
Hoc Committee’s Bureau.
The Ad Hoc Committee was officiallyestablished in December 1998 and held
its first session in Vienna in January
1999. It finalized the text of theConvention at its tenth session in July
2000 and the text of the Protocols against
Trafficking in Persons, Especially Womenand Children and against Smuggling ofM igr ants at its ele ve nt h ses sio n in
October 2000. The Ad Hoc Committee
tried very hard but did not manage too ve r c o m e d if f e r e n c e s im p e d in g t he
f in a liz ation o f th e te xt of the th ird
Protocol, against Illicit Manufacturing ofand Trafficking in Firearms. Therefore, itscheduled another session (its twelfth) for
February/March 2001 , in order tocomplete this task. After a very intense
we ek , the Co m mitte e’ s e ff or ts we recrowned with the successful conclusion of
the negotiations for the third Protocol,
which completed the package that theinternational community had set out toconclude only two years before.