Dispatches from the UNCAC Conference of States Parties, Part 2: International Enforcement of Anticorruption Agreements

Last month, the UN Convention Against Corruption (UNCAC) Conference of States Parties (COSP) was held in Vienna, Austria. In addition to the formal meetings of government representatives, the COSP also featured a number of panels, speeches, and other side events, at which leading experts discussed and debated a range of anticorruption topics. GAB is delighted that Northwestern Pritzker School of Law Professor Juliet Sorensen and her student Kobby Lartey, who attended the COSP, have offered to share highlights of some of the most interesting sessions in a series of guest posts. Today’s post is the second in that series.

The COSP panel on “Corruption and International Laws and Judgments” generated candid conversations about the role of international laws and judgments in the fight against corruption. Moderated by Bart Scheffers of the Open Society Foundation, the panel included one of us (Juliet Sorensen), along with Transparency International’s Gillian Dell; the Helsinki Committee’s Harry Hummel; and France Chain of the OECD.

  • Gillian Dell spoke frankly about what she characterized as “gross non-compliance with UNCAC provisions.” She noted that the Convention itself includes no remedy for violations, which undercuts its credibility. Ms. Dell also advocated for a broader application of human rights norms to different facets of UN treaties, and procedures to ensure that international treaties are consistent with international human rights standards.
  • Beyond the terms of the UNCAC itself, Harry Hummel spoke about the need to move human rights into the mainstream of international social, political, and economic relations, and argued that human rights norms should not be segregated from other parts of international law. Mr. Hummel also spoke about the role of professional standards in ensuring compliance with international and judgments, and argued that, because of the cross-border nature of corruption, there ought to be more systemic attention to transgressions of professional standards in different jurisdictions. For example, local, national, and international bar associations worldwide must confront the role lawyers play in tackling and or perpetuating acts of corruption.
  • In contrast to the UNCAC’s lack of meaningful compliance review, France Chain spoke about the more rigorous, albeit imperfect, peer review process of the OECD Anti-Bribery Convention, which includes a compulsory on-site visit, in which all stakeholders in a nation are engaged, and fully publication of all reports gathered during these visits. Ms. Chain noted that the formality of this peer review process significantly incentivizes compliance with the Convention. Furthermore, the OECD engages in follow-up on the basis of the review, which can include letters to ministers and heads of state, as well as technical training for lawyers, law enforcement, the judiciary, and the private sector. It can also consist of a high-level missions to remind a nation of its obligations under the Convention. Through this work, the OECD has achieved great success. Indeed, 41 countries have strengthened regimes for liability of legal persons, foreign bribery is no longer tax deductible, and 18 countries have instituted whistleblower protection. Nonetheless, the fact that only 19 parties to the Convention – out of 43 signatories – have finalized at least one foreign bribery enforcement action makes clear that meaningful enforcement remains elusive.
  • Professor Sorensen articulated several “universal truths” about corruption using the Convention on Trade in Endangered Species as an example. First, corruption is motivated by money. She cited United States v. Silva in which a man sought to smuggle in hyacinth macaws into the United States. Any bribes passed along the way to facilitate their transit were dwarfed by the sticker price on the black market for the macaws. Second, corruption occurs at transaction points. In the case of illegal wildlife trade, criminals engage in corruption at the source, transit, and market countries. Indeed, if the institutions at these transaction points are weak, corruptions take a hold, creating “low risk and high reward” for those who engage in corruption. Third, corruption occurs in contexts in which personal relationships matter. For example, regulations and permits to hunt, sell, or transport wildlife allow for lobbying and negotiation, in which people often rely on their personal relationships. Fourth, corruption inhibits growth by lowering investor confidence, thereby acting as a “tax” on business. Fifth, criminal justice is necessary but insufficient to tackle corruption, and must other tools in the toolbox should not be ignored. In particular, combatting corruption requires a change of attitude, strengthening of institutions, and the engagement of stakeholders. Without such a multifaceted effort, corruption will continue to wreak havoc on our societies – international laws and judgments notwithstanding.

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