AG/RES. 2189 (XXXVI-O/06) Fighting Transnational Organized Crime In The Hemisphere

General Assembly of the Organization of American States
Santo Domingo, Dominican Republic

Adopted at the fourth plenary session, held on June 6, 2006

THE GENERAL ASSEMBLY,

CONCERNED that the security of the states of the Hemisphere is affected, in various ways, by traditional threats and by new threats, concerns, and other challenges of diverse types, such as transnational organized crime, as well as by the growing complexity and diversity of the activities of organized criminal groups;

RECALLING that in the Declaration on Security in the Americas, adopted at the Special Conference on Security, held in Mexico in October 2003, the member states condemned transnational organized crime, since it constitutes an assault on institutions in our countries and negatively affects our societies, and renewed the commitment to fighting it by strengthening the domestic legal framework, the rule of law, and multilateral cooperation, respectful of the sovereignty of each state;

TAKING INTO ACCOUNT that the United Nations Convention against Transnational Organized Crime and the three supplementary Protocols thereto--the Protocol against the Smuggling of Migrants by Land, Sea and Air; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition--constitute the legal framework which the Hemispheric Plan of Action against Transnational Organized Crime should follow and on which it should be based;

BEARING IN MIND:

Resolution AG/RES. 2116 (XXXV-O/05), "Fighting Transnational Organized Crime in the Hemisphere," which called for the establishment of the Special Committee on Transnational Organized Crime to prepare a draft hemispheric plan of action against transnational organized crime and to follow up on the related activities of the Organization and its organs, agencies, and entities;

The establishment, by Executive Order 05-13 Rev. 1, of the Department for the Prevention of Threats against Public Security, which is responsible for coordinating, inter alia, the efforts of the General Secretariat of the Organization of American States (OAS) in areas related to the prevention of and the fight against transnational organized crime; and

The report of the Chair of the Special Committee on Transnational Organized Crime, presented to the OAS Permanent Council on March 1, 2006 (CE/DOT-32/06 rev. 1); and the report on the status of the Hemispheric Plan of Action against Transnational Organized Crime (REMJA-VI/doc.18/06), presented to the Sixth Meeting of Ministers of Justice or of Ministers or Attorneys General of the Americas (REMJA-VI) by the Chair of the Special Committee;

NOTING WITH SATISFACTION the conclusions and recommendations of REMJA-VI in relation to this matter, contained in document REMJA-VI/doc.21/06 rev. 1, in which, among other things the Ministers or Attorneys General of the Americas expressed their satisfaction with the progress made in drafting the Hemispheric Plan of Action against Transnational Organized Crime and urged states to continue making headway so that the negotiations can be concluded as soon as possible; and

HAVING SEEN the Annual Report of the Permanent Council to the General Assembly, in particular the section on the topics assigned to the Special Committee on Transnational Organized Crime (AG/doc.4548/06 add. 4), among them the implementation of resolutions AG/RES. 2026 (XXXIV-O/04) and AG/RES. 2116 (XXXV-O/05), "Fighting Transnational Organized Crime in the Hemisphere,"

1. To invite those member states that have not yet done so to consider ratifying, acceding to, accepting, or adopting, as the case may be, and implementing the United Nations Convention against Transnational Organized Crime and the three supplementary Protocols thereto–the Protocol against the Smuggling of Migrants by Land, Sea and Air; the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition.¹

2. To urge member states to adopt and strengthen their legislation and measures for cooperation in order to combat the various manifestations of transnational organized crime in the Hemisphere.

3. To instruct the Permanent Council of the Organization of American States to conclude, through its Special Committee on Transnational Organized Crime, its efforts to draw up the Hemispheric Plan of Action against Transnational Organized Crime, by October 31, 2006.

4. To authorize the Permanent Council to adopt the Hemispheric Plan of Action against Transnational Organized Crime.

5. To request the General Secretariat to take the necessary measures, once the Plan of Action has been adopted, to implement those aspects of the Plan entrusted to it.

6. To instruct the Permanent Council to present a report on the implementation of this resolution to the General Assembly at its thirty-seventh regular session.

7. To instruct the Permanent Council and the General Secretariat to carry out, as appropriate, the activities mentioned in this resolution, within the resources allocated in the program-budget of the Organization and other resources, such as voluntary contributions.

---------------------
¹The delegation of Colombia wishes to make the following declaration on operative paragraph 1 of the resolution "Fighting Transnational Organized Crime in the Hemisphere."

Colombia has ratified the United Nations Convention against Transnational Organized Crime and its Additional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and is fully committed to their application.

However, Colombia has stated that it will not ratify the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, or the Protocol against the Smuggling of Migrants by Land, Sea and Air.

Colombia does not agree with the text of Article 4, paragraph 2, of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, concerning its scope of application. Colombia would have preferred that the Protocol apply to all transfers of firearms, their parts and components, and ammunition, in order to make a real contribution to preventing and combating illicit trafficking therein, and in order that transfers between states, like all other transfers, be subject to the control mechanisms set out in the Protocol.

The definition of "illicit trafficking" contained in Article 3, section (e), of the Protocol must be borne in mind: it states that, for a transfer to be licit, the authorization of all states parties involved in it is required. An escape clause, such as that appearing in Article 4, runs counter to that definition inasmuch as it implies that a state may transfer arms without the authorization or consent of one of the other states concerned. This would not only make such a transfer illicit but also open up the possibility for arms to be transferred to non-state actors.

Colombia, a country that has been seriously affected by the illicit trafficking in arms, cannot accept that certain arms transfers, such as transfers to non-state actors–which in our view constitute a grave crime–and transfers between states be excluded from the Protocol’s control measures, and therefore, in accordance with the Vienna Convention on the Law of Treaties, took the sovereign decision not to ratify this Protocol.

With reference to the Protocol against the Smuggling of Migrants by Land, Sea and Air, Colombia has stated that it will not ratify this instrument inasmuch as it considers that it contains provisions designed to legitimize the forced repatriation of migrants who have not necessarily been smuggled. That approach was promoted during the negotiation of the Protocol by the destination countries, none of which has ratified the 1990 United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Pursuant to the above, and in compliance with the Vienna Convention on the Law of Treaties, Colombia took the sovereign decision not to ratify the Protocol.