Whether donors or the Commission set priorities, and unfunded

unfunded mandates

A chronic problem in the Commission has been the question of whether UNODC priorities should be set politically and strategically by the Commission itself, or on an ad hoc basis by the donors, through decisions about what projects they will fund. Developing countries argue that it should be for the Commission as a whole to establish mandates and set priorities, and that resources should be allocated and projects carried out based on collective political consensus. For the major donors the domestic decisions to contribute the resources are frequently based on domestic decisions linked to specific anti-crime priorities, and contributions are therefore often donated with the requirement that they be used for specific purposes. Donor selection of projects

129 See U.N. Joint Investigation Unit, “Review of Management and Administration in the U.N.

Office on Drugs and Crime”, 2010, JIU/REP/2010/10, paragraph 52 and Report of the Commission on Narcotic Drugs at its 51st Session, E/CN.7/2008/15, E/2008/28, paragraph 137.

130 Remarks of the Delegation of Argentina, from the author’s notes, unpublished.

131 Variations of this observation were made by Mr. Costa on a number of occasions before the Commission and other bodies in the context of transnational crime in general and of specific types of crime, especially those associated with modern technologies. See, for example, his remarks to the U.N. Security Council, 27 February 2010, SC/9867.

is usually based on the domestic or regional priorities of each donor and the ability to meet results-based management accountability requirements. For reasons of both accountability and political profile, projects with fairly clear outcomes and short delivery times tend to be preferred over larger more complex projects or other work with less tangible or quantifiable benefits, such as research work, institutional capacity or core management functions. Thus, while recipient States express frustration at the inability to get technical assistance or other work done in areas where they are able to secure mandates but not resources, major donors reply that it is difficult to persuade national governments and funding agencies to contribute resources to work that is undefined or not in accordance with national priorities.

The third variable, the U.N. regular budget, is intended to address some of these concerns, in the sense that it is generated from the general assessments paid by all Member States under the U.N. Charter, but it has been the subject of a similar debate in the General Assembly, and has not grown significantly for many years. There the outcome was a decision that major budget decisions would be adopted on consensus, effectively giving a veto, if not to each Member State, then to any group large enough to block consensus without being isolated.¹³² The effect on UNODC, which is discussed in the following segment, is that the portion of the Office’s overall budget which is provided from regular budget (RB) resources has fallen over the past two decades, and is well below the minimum levels needed merely to maintain core Secretariat functions (management, substantive services, institutional support and internal capacity-building). Some substantive work, such as the servicing of expert meetings, has been done using RB resources allocated for the holding of major meetings, but in practice, RB resources are seldom if ever used for technical assistance and other project work.

In the Commission, where the practice is to adopt resolutions on consensus, the same problem should not have arisen as in the General Assembly, but the practice has been not to block consensus only for financial reasons, and many resolutions containing un-funded mandates have been adopted over the years.

These serve a useful purpose in articulating the collective (and over the years, cumulative) political will of the Member States, but are either subject to a statement of Programme Budget Implications or a paragraph making implementation subject to the availability of resources. The effect, in either case, is to make them contingent on either the allocation (extremely rare) of resources from the regular budget, or the contribution of the necessary extrabudgetary resources by a Member State. Large numbers of

132 See A/RES/41/213, paragraphs 5-7 and Annex (opinion of the Legal Advisor), based on a report of a high-level group of experts dealing with a number of reform questions, A/41/59, at paragraphs 8 and 51-71. Generally, the decision involved substantial reductions in senior level Secretariat posts, and consensus-based decision-making, subject to the ultimate authority of Article 18 of the U.N. Charter, which provides for decisions based on a 2/3 majority vote on

“important questions” if consensus fails. For an assessment of the 1985-86 process, see Luck, 2004 at pp. 381-87. See also Laurenti, 2004.

implemented or partially implemented mandates have accumulated, prompting periodic proposals to consolidate or extinguish them,¹³³ and raising concerns that with so many mandates, attempts to focus the work along strategic lines are illusory, because the timing of projects is governed by decisions based on funding decisions by individual donors rather than any sort of collective strategy. In effect, attempts at strategic planning in the Commission have been trapped between the inability of the Commission itself to reach consensus on what should – and should not – be a priority; the duality of mandates as both a general expression of political will and specific authorities that direct the Secretariat to engage in work that consumes resources; and the need of donor States to link their contributions to work that their governments – and their taxpayers – have agreed to support.

As in other bodies, this issue has led to time-consuming and generally fruitless debates in many sessions of the Commission, and so many attempts at compromise language in resolutions that the various successive texts such as

“... subject to the availability of extrabudgetary resources ...” added to each resolution eventually became to be known as “the financial or budgetary mantra”. The issue also dominated 2007 intersessional discussions of a proposed medium-term strategy for UNODC and was one factor in the decision of the 17^th (2008) session to establish an open-ended intergovernmental working group to discuss and prepare recommendations on how to ensure political ownership by the Member States and to improve the governance structure and financial situation of the UNODC.¹³⁴ This process offers some hope of developing more consistent and coherent strategies as between the Crime Commission, the Commission on Narcotic Drugs and the Conferences of Parties to the Palermo and Merida Conventions, but it seems unlikely to do much to address the underlying problems. Similarly, both of the functions of established mandates can be improved to some degree by efforts to generate consolidated versions and/or propose the extinction of old or obsolete mandates, in the sense that they would become clearer as an articulation of the will of the Member States, and that mandates which have been exhausted or superseded could be extinguished, but the fundamental question of how to deal with valid but unfunded mandates would still remain.

133 The 2008 Report of the Joint Investigation Unit (J.I.U.) notes that as of 2006, 364 UNODC mandates were outstanding. See JIU/REP/2010/10 paragraphs 23-38. While the majority of mandates requiring some form of reporting had been met, 33% were not fully implemented, most commonly due to a lack of resources. A 2006 Report of the Secretary General recommended the consolidation of mandates and established a centralised registry of mandates to facilitate this. See A/60/733, paragraphs 9-15 and 123 and http://www.un.org/mandatereview/index.html. The J.I.U. Report also surveyed those who work in UNODC and its regional offices and found that a majority of the people who work there felt that the mandates were useful whether implemented or not.

134 E/RES/2007/12, Annex, and E/2008/30, Decision 17/2 [E/CN.15/2008/L.5].

3. Imbalance between resources earmarked for specific