Establish criteria and a practice governing the choice of body to which

addressed

Another effect of the discrepancy between the political and technical functions of the Commission and the resolutions it adopts is that Member States often seek to address resolutions to the General Assembly in search of political profile for the issues addressed, when the technical mandates created by the resolutions do not require approval by the General Assembly. Conversely, resolutions which did require this approval for legal or technical reasons have on occasion been blocked either by Member States seeking to reduce political profile or in an attempt to reduce document volumes and agenda demands in the proceedings of ECOSOC and the General Assembly. Efficiencies could be accomplished with little loss of substantive value if Member States were to find consensus on what sorts of subject matter require the attention of ECOSOC and the General Assembly and then apply them to limit the unnecessary onward

referral of resolutions. Based on past practice, criteria for reference to the ECOSOC or General Assembly could include the following.

 Whether the subject matter concerns other United Nations entities or is addressed to such entities. Most of the ongoing discussion of U.N. reforms includes the need for greater horizontality, and ensuring that subject-matter which raises issues within the mandates of more than one body is brought to the attention of any and all appropriate bodies. This is particularly important with subject matter such as human rights and crime prevention and criminal justice, which are cross-cutting and frequently raise such issues. In some cases delegations may propose resolutions which actually address other bodies, calling for coordinated action. In such cases, it may be necessary to transmit some resolutions to the ECOSOC or General Assembly to ensure that they are transmitted to or formally brought to the attention of all appropriate bodies. An additional element of such resolutions could be content calling on the General Assembly to designate a focal point or forum for consideration of an issue and then set out the respective roles of other political bodies and elements of the Secretariat. A common challenge in building consensus in such cases will be deciding whether an issue should be dealt with thematically, in mandates addressing criminal and non-criminal aspects together (e.g. protection of the environment), or whether it is sufficiently serious to be treated as a predominantly crime prevention and criminal justice issue (e.g., trafficking in persons).

 Where the authority or mandate sought is outside of the authority of the Commission or requires consideration by the U.N. membership as a whole. While it is logical that the Commission itself should direct work specifically within the area of crime prevention and criminal justice, some crime-related mandates require higher authority and a broader consensus among the Member States of the U.N. as a whole. The most significant recent examples include A/RES/53/111 and A/RES/56/260, which mandated and convened the open-ended intergovernmental Ad Hoc Committees of the General Assembly, which negotiated the 2000 and 2003 Conventions. Those involved subject matter developed in the Commission, but called for the establishment of a negotiation process open to all Member States in order to produce global legal instruments. Such negotiations had to be conducted by the General Assembly, and it was therefore necessary for them also to be conducted under a mandate established by it.

 Where the issues raised or action requested affected the mandate or functioning of the Commission itself. Arguably, such proposals represent a special case of the previous category, as the basic subject-matter mandate of the Commission was established by the ECOSOC at the direction of the General Assembly, and under the ECOSOC Rules of Procedure amendments, exceptions or modifications of those

Rules as they apply to the Commission can only be adopted by the ECOSOC itself. This is also logical, since such changes can affect the interests of the U.N. Member States as a whole (and in some cases other functional Commissions) and not just those which happen to be Members of the Commission at the time any changes or modifications might be proposed. Some of the need for the referral of resolutions and decisions to the ECOSOC might be alleviated by the development of Rules specific to the Crime Commission and the delegation of authority to amend them to the Commission itself. The Rules were originally developed by the first sessions of the ECOSOC on the assumption that a number of similar functional Commissions similar to the Human Rights Commission would be established, but the reality has been more episodic and a range of different practices appears to have evolved in each commission in accordance with its needs. This has caused problems on occasion when delegates experienced in the practices of one body seek to apply them in another. After 20 years of experience, it may be time to consider modernising the rules for the Commission and its subordinate bodies, and to do so in collaboration with the ECOSOC, but at the level of the Commission itself.

 Where there are implications for the United Nations Regular Budget. As noted, budgetary authority over the Crime Prevention and Criminal Justice Fund now vests in the Commission itself, but any proposal that would draw on RB resources has implications for the U.N. as a whole, and given the current inability to increase the overall budget, entails a loss by some other U.N. agency or programme.

General Assembly resolutions are therefore needed for changes which have Programme Budget Implications, to ensure review by the Fifth Committee of the General Assembly and its subordinate body, the Advisory Committee on Administrative and Budget Questions (ACABQ).

 Where the ECOSOC or General Assembly has directed the Commission to report back. It is always open to the General Assembly itself, having become seized of specific subject-matter, to choose to remain so, and accordingly direct subordinate bodies to carry out certain courses of action and report back in due course. A number of examples of such resolutions can be found in the recent past. Resolutions dealing with the quinquennial Crime Congresses, which are convened by the General Assembly take this form.

 Subject matter or procedural elements affecting the UNODC as a whole. With the 2003 merger of the Secretariat and the establishment of the Conferences of States Parties, UNODC is now under the oversight of five separate bodies of Member States. Where subject matter significantly affects the mandates of more than one of these bodies, approval by the ECOSOC may in some circumstances be needed. That said, the Secretariats, and in many cases members of national delegations, are the same for the various bodies, and

coordination has gradually improved since the 2003 Secretariat merger and the establishment of new posts to support the two Conferences. The emerging practice is now to adopt coordinated or parallel resolutions in the two Commissions, which may make referral to the ECOSOC unnecessary, or where its approval is needed, the referral of single joint resolution. The open-ended intergovernmental working group on financial and budgetary questions (“Fin-Gov”) was established by both Commissions and current practice is to hold coordinated extended sessions of the Crime Commission and CND each December to adopt a joint budget. Coordination with the two treaty Conferences has been more ad hoc, but overlapping subject-matter is commonly referred back and forth, thus far without major problems. This suggests that referral to ECOSOC, and in the case of some treaty issues, to the General Assembly, will only be needed on rare occasions where the different political bodies disagree.

 The creation of new treaties or the amendment or expansion of the existing treaties. This is clearly a matter for the General Assembly, but how such proposals should be considered and referred upward depends on the exact nature of the proposal in each case. The Conferences have the authority to consider and refer proposals that affect or depend on the existing instruments, such as amendments, and in the case of the Palermo Convention, proposals for further protocols, but not subject matter outside of this scope. This means that proposals to develop new international legal instruments dealing with crime should be first made in the Crime Commission. If it determines that an instrument is needed and that it falls outside of the scope of the existing treaties, it would refer the matter to the General Assembly via the ECOSOC in the same way as was done for the two previous Conventions in 1999 and 2001. If the Commission decided that the subject matter was within the scope of a Convention, and hence within the mandate of its Conference, it should then refer the matter there, on the basis that only the existing States Parties can decide whether an amendment or further Protocol was needed.

Process aside, this may also be a substantive determination. In the case of the Palermo Convention and Conference, for example, it would require the assessment that the subject-matter predominantly involved the activities of “organized criminal groups” within the scope of the Convention. The possibility exists that one of the Conferences could decide unilaterally to negotiate amendments, but this seems unlikely in any major issue of substance, as the non-Party States might wish to propose or consider the option of a separate instrument to make it possible to ratify or accede to the proposed new instrument without joining the existing one. In default of consensus, any Member State can propose the elaboration of a new instrument directly in the General Assembly, but this seems unlikely to succeed if there is no expert assessment or building of consensus first at a lower level.