Guest Post: Time for UNCAC Mark II?

GAB welcomes back international anticorruption consultant Alan Doig, who contributes the following guest post:

The United Nations Convention against Corruption (UNCAC), which came into force in 2005 and has been ratified by 187 countries, is the oldest and most comprehensive Convention solely devoted to the prevention, detection, and investigation of corruption. Yet today UNCAC, for all of its importance, is not serving as an effective blueprint or framework for promoting innovative and effective responses to corruption. There are four main reasons for this:

  • First, perhaps due to UNCAC’s genesis in the UN Convention against Transnational Organized Crime, UNCAC is skewed too heavily toward the criminal justice aspects of anticorruption, as demonstrated by the fact that nearly 80% of UNCAC’s substantive Articles relate to law enforcement, asset recovery, and related issues.
  • Second, UNCAC left too many key terms undefined or underspecified, allowing for significant interpretation (or misinterpretation) of the Articles, and some 40% of UNCAC’s substantive Articles are non-mandatory; these factors tend to undermine the efficacy of the Convention.
  • Third, UNCAC’s review mechanism is too slow and fragmented, and fails to employ a sufficiently holistic framework that assesses performance and progress in implementation and impact.
  • Fourth, and most significant, UNCAC is not amenable to updating. This has meant that issues which were only emerging back in 2005, such as political-party funding or beneficial ownership transparency, only received limited attention. Issues that were once addressed, if at all, through ad hoc references scattered throughout the Convention are assuming more importance. The difficulty of updating the Convention derives in part from the insistence of the UN Office of Drugs and Crime (UNODC) that UNCAC may be used as a legal document suitable for treaty purposes—even though other international instruments serve similar purposes and its value as a treaty has been limited (as demonstrated by, among other things, the fact that UNCAC has been used for mutual legal assistance only 17 times in over a decade).

So, with a reboot of the existing Convention unlikely, maybe it’s time for a new Convention—an UNCAC Mark II. An UNCAC Mark II— which we might perhaps call the UN Convention on the Prevention of Corruption (UNCPC)—could provide a framework that promotes innovative, flexible, and forward-looking means to address corruption challenges, going beyond technical and compliance approaches.

The main focus of the proposed UNCPC, as the name implies, should be on mainstreaming prevention of corruption, both for its own sake and as a means toward wider objectives, such as trust in public institutions, good governance, and the rule of law. Chapters of such a convention could address, for example: risk assessment, developing strategic approaches, promoting public integrity, transparency and accountability, managing the political and partisan dimensions of public life, preventing profiting from corruption, prioritizing citizen-facing public services, and developing measurable progress and performance. In particular, and largely missing from the current Convention, a UNCPC should address the roles and expectations of a wide range of named in-country public and private sector organizations, as well as in civil society, to collectively mainstream the Convention as part of their work.

Such a Convention needn’t start from scratch. Its contents and coherence would come from synthesizing and integrating the wide range of the corruption prevention initiatives, most of which post-date UNCAC. These include, for example, the Kuala Lumpur Statement on Anti-Corruption Strategies, the international standard on anti-bribery management systems (ISO 37001), the Council of Europe’s work on public ethics, the extractive industries and other transparency initiatives, and the work of organizations like the UN Global Compact and the UNCAC Civil Society Coalition. The contents of a new Convention could also draw on the empirical evidence from GRECO reviews and Transparency International National Integrity Studies. Engaging with all these organizations, who have a stake in prevention, will foster a collective sense of ownership, and they can also take a leading role in monitoring and reviewing implementation of the Convention.

In contrast to UNCAC, this proposed new Convention should not seek global membership. Rather, the UNCPC should require both serious substantive commitments and acceptance of a rigorous whole-Convention peer-review system focused on demonstrable performance and progress. At the same time, evidence from practice on the ground will inform an equally rigorous review and revision of the Convention to ensure its relevance. The overall goal is a more comprehensive and dynamic Convention that provides a collective, mutually-supportive approach to anticorruption, one that seeks to achieve meaningful results within realistic timeframes.

6 thoughts on “Guest Post: Time for UNCAC Mark II?

  1. HI. I have a doubt when Mr. Alan Doig says this convention is the oldest devoted against corruption. The Organization of American States (OAS) convention was signed in 1996.
    The OAS created a sort of “auditory” mechanism to check on the implementation of the convention provisions. Besides, the OAS after some years, checks again if its recommendations where also implemented.
    The convention and the “audits” are not perfect, but a least is something. The UN does not work in this respect.
    The recommendations from Alan are very interesting and helpful. I will check how his comments can be applied also on the OAS convention (by coincidence, I am doing a research on how Argentina is complying with the OAS).
    Marcelo de Jesus – FORES (Argentina). Representative in the USA

  2. Sorry, but this piece contains incorrect information. One example: “UNCAC value as a treaty has been limited (as demonstrated by, among other things, the fact that UNCAC has been used for mutual legal assistance only 17 times in over a decade).”

    Just some references to official UNODC publications from 2017 please see p. 246 here

    UNCAC is regularly used as a legal basis in extradition and MLA requests. The actual number is probably close to several hundred requests worldwide.

    It is also the only global treaty that contains asset recovery requirements. Its value as an international treaty cannot be downplayed.

    • Source for the comment:

      OECD Anti-Corruption Network for Eastern Europe and Central Asia. 2017. International Co-Operation in Corruption Cases @ p14: “UNODC noted that 17 states have reported requests made and/or received based solely on UNCAC” (footnote reference: UNODC, “Latest Developments with Regard to the United Nations Convention against Corruption,” Note prepared by UNODC for 1st G20 Anti-Corruption Working Group Meeting, Beijing, 26–27 Jan. 2016, at 8).

      • Yes, but that is an outdated info, 5 years passed since then and why not to refer to more current UNODC sources?

        In current practice UNCAC is frequently used for corruption-related MLA…

  3. I agree that a rejuvenation of the UNCAC is desirable, it having served the valuable purpose of concentrating minds on the necessities for engagement in the combat against corruption. It has begun to look outdated and its utility must be examined, after improvements to domestic legal frameworks, contrived to comply with its obligations and recommendations.

    As a former Crown Prosecutor, working for five years in East Africa, with state prosecutors, anti-corruption agency and FIU, I saw negligible interest in the UNCAC and less use of it by practitioners or reformers. The same was true of the SADC Protocol against Corruption, the UNTOC and the AU Convention on Preventing and Combating Corruption, with no provision for checking on implementation. The IRM for compliance with the UNCAC stirred stakeholders for a time but the Mutual Evaluation process for FATF was evidently thought more relevant and important. The Support and Compliance Process of the Egmont Group of FIUs, another test of how good practice is followed, was a closed book to most.

    After regional and global competition, 15 to 20 years ago, to announce high-minded aspirations to tackle already endemic corruption and serious and organised crime, it must be time to refresh the thinking and recommendations. Maybe it is time to separate Law Enforcement from Education and Prevention; and to reassess the value of the models for ACAs, some of which bring the displacement of conventional policing and prosecution, to make space for niche investigators and prosecutors.

    If the overlap between five or so well-meaning instruments causes confusion or deters use of them, something needs to be done. Data capture, analysis and sharing are notoriously challenging, in the best of circumstances: it is like trying to herd cats, to get autonomous law enforcement agencies (including some ACAs) to agree what should be recorded, by whom, in what form and for whose benefit. It is no surprise that it is impossible to know how often the UNCAC has been used for MLA purposes (alone or in tandem with other treaties) or why it should matter to a busy lawyer struggling with the drafting of a letter of request (and finding out where to send it).

    Lastly, it should be recognised that poor countries, with capacity and resource issues, need financial help to pursue assets abroad. The rich countries which attract dirty money, through ‘open for business’ gestures (ease of incorporation, no Beneficial Ownership requirement, lax AML compliance by enablers etc.) should under-write the cost of litigation in their courts for the recovery and restitution of illicit assets.

  4. I totally agree with the statement that this Convention is not enough to properly tackle corruption issues. Leaving things subject to interpretation and enforcement by domestic legislation is definitely not a very efficient mechanism, perhaps particularly in those countries where corruption is extremely entrench in the system. But would the changes proposed for the new Convention be enough? Perhaps I am very skeptical but when leaving anything subject to domestic enforcement, I believe we risk making the whole new convention sort of inefficient, ineffective and impractical, specially when we are talking about developing countries.

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