Jordan recently floated a very interesting idea on this blog about how to move forward in strengthening enforcement of the OECD Anti-Bribery Convention. As he pointed out, the Convention itself allows extremely limited means of enforcement: other than shaming noncompliant countries with scathing reports, there’s nothing that can be done within the existing framework. Since changing the Convention to include new sanctions is a nonstarter because noncompliant nations would need to accede to those changes, he suggested that willing members of the Convention “[d]evelop an extra-Convention agreement” to reward countries that live up to the terms of the Convention and “impose collateral consequences upon those who don’t.” The upshot of this extra-Convention agreement is that it would allow states to punish and pressure countries like South Africa, which has resisted the shaming effects of the Convention’s reports.
Jordan’s idea gets at a very important issue plaguing this otherwise effective international instrument. But if implemented as he describes, I worry it could have unintended consequences for the future development of voluntary agreements and international law. For that reason, perhaps creating an optional protocol to the Convention would be a better path forward than fostering an extra-Convention framework aimed at punishing noncompliant countries.
First, the problem: A few countries banding together to punish others — in ways not foreseen by the Convention system — for not complying with their Convention commitments would undermine the voluntariness at the heart of the international system and could change the norms according to which countries accede to treaties. South Africa undoubtedly considered the enforcement regime within the Convention before signing on, and may not have acceded if the enforcement regime had been stronger. Imposing new consequences on South Africa now by virtue only of their original accession to the treaty would be changing the rules on South Africa without its consent. While this might help solve the enforcement problem in the short term, it would also send a message to the international community that while countries can rely on international instruments when it comes to their commitments, they cannot rely on them when it comes to the sanctions they might face. Uncertainty about sanctions and enforcement could create a chilling effect on the development of future voluntary international commitments. From the UN Charter to the International Criminal Court, the sanctions regime — how it’s triggered and how it can be enforced — is crucial to the adoption of any new instrument, and calibrating that regime is often the most important step in gaining acceptance of an instrument.
Jordan’s extra-Convention solution would therefore be at odds with the system of voluntary international commitments that has built up over the last three-quarters of a century. Of course in extreme cases, when jus cogens or peremptory norms such as the illegality of genocide and military aggression are at stake, the international community may want to depart from its commitment to voluntariness in international affairs. But the burden should be extraordinarily high, and anti-bribery enforcement does not meet it.
Next, a possible solution: Jordan’s intriguing suggestion did give me an idea, however. If altering the existing Convention is infeasible and going outside it is unwise, perhaps the solution is to create an optional protocol “on top” of the existing Convention that would authorize greater enforcement measures for countries that accede to it. Doing so wouldn’t automatically resolve the problem Jordan identified, because countries like South Africa would need to join the protocol in order to be bound by it. But having an optional protocol would at the least provide another opportunity to shame noncompliant parties: by pulling the Convention system ahead, it would leave the distinct impression that non-acceding countries are left behind. An optional protocol would also give the drafters the opportunity to create new incentives for those countries that accede to the protocol, as a way of implementing Jordan’s idea that nations “reward” each other for compliance. This medicine is not quite as strong as Jordan’s, but it might go down better.
Adding an optional enforcement protocol could also change the calculus in the thorny question of whether to expand the Convention. As Matthew previously noted, reasons against expanding membership in the Convention’s “club” include fears that doing so could weaken the cultural commitment to compliance or allow for subversion of the “consensus minus one” rule. But an optional protocol could impact these concerns, whether by altering the consensus rules observed by acceding nations or by allowing countries to signal a greater commitment to enforcement. Indeed, to really put the screws to noncompliant countries, current members could prioritize the admission to the Anti-Bribery Convention of countries willing to sign onto the optional protocol, or forbid altogether new members who weren’t willing to embrace the optional protocol.
I have no idea whether the Convention community has any appetite for an optional protocol, and it’s a bit unclear whether the Convention’s amendment procedures would conflict with such a plan (they seem to have nothing forbidding it). But those interested in ratcheting up the Convention’s enforcement system would be better off respecting the voluntariness principle rather than risking undermining it.