15 November 2013, by Gillian Dell.
Transparency and civil society participation are essential for anti-corruption efforts, as recognised in many articles of the UN Convention against Corruption (UNCAC). Nongovernmental organisations (NGOs) can offer valuable expertise and advice for government initiatives, and support of the wider public is crucial.
Yet at the UN in Vienna, where the UN Office on Drugs and Crime provides the UNCAC secretariat, NGOs have been excluded since 2010 from participating as observers in the meetings of UNCAC subsidiary bodies. This violates the applicable rules of procedure, which are very clear. According to Rule 2, the COSP rules of procedure must be applied mutatis mutandis to subsidiary bodies created under UNCAC Article 63. These bodies include the Implementation Review Group (IRG), the Working Group on Prevention and the Working Group on Asset Recovery.
So what are the relevant COSP rules to apply mutatis mutandis? Rule 17 says that NGOs can participate as observers in COSP plenaries. Rule 40 says that COSP plenaries should be public unless the COSP decides otherwise. A few States parties that wish to exclude NGO observers say that Rule 17 does not apply to subsidiary bodies because of the reference to “plenaries.” That interpretation is incorrect. It fails to give meaning to the term “mutatis mutandis.” It ignores that subsidiary bodies take decisions in plenary sessions. It overlooks that under Rule 40 their sessions should be public. It runs counter to UN practice in Geneva, where a working group is public and open to NGO observers unless the working group decides otherwise. Most importantly, it is inconsistent with the ideals of transparency and multi-stakeholder collaboration embodied in the UNCAC.
According to the rules, the States parties seeking to exclude NGOs could propose to hold some meetings of subsidiary bodies in closed session or could try to convince their fellow States parties to reject NGO applications for observer status. Instead, they have used their political clout to turn the tables. In response to their pressure, the UN Office on Drugs and Crime has barred NGOs from meetings of the subsidiary bodies without putting the question to the members of those bodies as required by the rules of procedure. This sorry state of affairs damages the reputation and credibility of the UN and the UNCAC and should be addressed promptly.
Pending TI application for observer status
In early November, Transparency International applied to the UNCAC bureau for observer status in the IRG session taking place in Panama on 26 -27 November. According to Rule 17 (1) of the COSP rules of procedure, which applies mutatis mutandis, this application “should be accorded unless otherwise decided by the [IRG].” (emphasis added) If there is no IRG decision to the contrary, Transparency International representatives must be allowed to observe the IRG session.
About Gillian Dell
Gillian Dell is Head of Conventions Unit, Transparency International
- “Mutatis mutandis” means changing [only] those things which need to be changed.