Tag Archives: Russia

Some Worrisome Russian Rhetoric at the UNCAC Conference of States Parties

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My post a couple days ago expressed some discomfort with the decision to hold the Conference of States Parties to the UN Convention Against Corruption in Russia, given Russia’s track record on this issue, and my concern that the Russian government hopes to use this event more as a PR exercise than anything else. Apropos of these concerns, I finally had a chance to watch some of the video from the event, and one particular passage in the opening remarks of Sergei Ivanov (Chief of Staff of the Presidential Executive Office and a Putin crony) caught my attention. Sandwiched in between claims that recent surveys show corruption in Russia is decreasing and descriptions of all the measures Russia is supposedly taking to combat corruption, Mr. Ivanov said (and here I’m transcribing the English simultaneous translation, since I can’t speak Russian):

We firmly believe that anticorruption activities at the international level require clear rules and agreed efforts between countries. Imposing standards, however, which certain countries are not willing to accept, is not acceptable—all the more so, given that we have seen on more than one occasion that when one country establishes standards of behavior, it tends to be that this is unacceptable to other countries, and it can indeed be harmful. In this connection, we believe that when implementing international anticorruption standards, we need at all times to take on board the specificities of each individual state. I would note also that in the Russian Federation the system of anticorruption measures is based on our national legal culture, which takes on board our historical and economic and social development trends, and the general interests of our society.

Maybe I’m just being paranoid, but to me this sounds an awful lot like a veiled warning that the international community, both within and outside the UNCAC review process, should refrain from criticizing Russia (or other countries) for failure to live up to international standards, on the grounds that each state – and Russia in particular – has its own unique circumstances. Of course, at a high level of generality, Mr. Ivanov’s remark is unexceptionable, and UNCAC already makes plenty of allowances for differences in national legal traditions and political systems. But the spirit of UNCAC is very much to hold every signatory country to a higher standard. Insofar as Mr. Ivanov’s statement is meant to suggest that other countries should not be subject to criticism for failure to live up to international anticorruption standards—particularly in the context of the second cycle country reviews, beginning this year—this seems to me contrary to the point of UNCAC and the associated review process.

(For those who are interested, the video of the full opening ceremony, including Mr. Ivanov’s address, is here, and the portion of the speech I quoted above can be found at 2:37:18-2:38:26.)

The UNCAC States Parties Meeting, and the Political Symbolism of Venue Choice

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The Sixth Conference of States Parties (CoSP) to the United Nations Convention against Corruption (UNCAC) is being held this week, in St. Petersburg, Russia. From a quick glance at the provisional agenda, it looks like some of the topics that delegates will focus on include prevention, asset recovery, and international cooperation, as well as broader issues related to UNCAC implementation. (For more information, see here.) I don’t really have much to say about the substance of the meetings, not least because they’re still in progress, and much of the actual discussion is taking place behind closed doors. Rather, I wanted to take this opportunity to say in public what I know a lot of people have been mumbling and/or grumbling about in private: There’s something a bit ironic, maybe even perverse, about holding the UNCAC CoSP meeting in Russia, of all places. It seems about as appropriate is it might be to hold a CoSP for the Convention on the Elimination of All Forms of Discrimination against Women in Saudi Arabia. Continue reading →

Can’t See the Forest Because of the (Missing) Trees: How Satellite Imagery Can Help Fight Illegal Logging

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Illegal logging is one of the gravest threats to the environment, and to the people (and countries) that depend on forest resources. Global Witness’s 2013 Annual Review describes industrial logging as a force that “drives land grabs, promotes corruption, contributes to climate change, fuels conflict and human rights abuses, and threatens over one billion people who rely on forests for their livelihoods and well-being.” The problem has been documented with surprising depth. Prominent examples include investigative work done by Global Witness (including two short films, Inside Malaysia’s Shadow State, which shows undercover interviews with members of then-Chief Minister of Sarawak Taib Mahmud’s family and legal team advising a “foreign investor” how to use bribery and fraud to illegally clear land for a palm oil plantation, and Rubber Barons, which documents land grabbing by a Vietnamese rubber firm), as well as other groups like the Environmental Investigation Agency, which recently recounted how army officials protect Chinese loggers’ passage into Myanmar, despite new laws entirely banning foreign exports of logs. In the popular media, NPR’s All Things Considered and The New Yorker looked at illegal logging in Russia and allegations of its yield being sold by major U.S. retailers, while The Economist called out HSBC’s involvement with dirty loggers. The issue is not confined to developing economies—a World Bank paper enumerated the breadth and variety of possible illegal acts surrounding the logging industry and its products worldwide, noting that practically all involve corruption. The problem, then, appears well-known and reported but remains widespread, possibly getting worse.

Illegal logging remains persistent largely because of pervasive corruption. A number of proposals have already laid out systems to address forestry corruption. Possibilities include land tenure arrangements that give management to local or indigenous groups, certification schemes for wood products, and a variety of monitoring and transparency mechanisms. A 2009 World Bank report provided a “comprehensive framework” involving five principal parts, each with a number of sub-components. Scholars, NGOs, and international organizations have noted the need for technology to increase monitoring capabilities. Technological developments may offer the key to progress in the fight against illegal logging—allowing circumvention of (or greater pressure on) the corrupt government officials who ignore, or sometimes participate in or profit from, the unlawful destruction of forests.

A previous post discussed one such technology, isotope provenancing, used to identify the origin of wood. This technology, however, has its limits. (For example, it does not help when forests are razed not to harvest the timber, but to clear the land for other uses, such as palm oil and rubber plantations.) Other new technologies can help show how corruption in the logging industry happens, working forward from the site of the problem instead of tracing back from imported products. One of the most promising tools—satellite imaging—is in fact already available, and could be very effective if deployed more appropriately and aggressively.

Continue reading →

Guest Post: Targeted Sanctions and Corruption–Legal Obstacles to a Magnitsky Act for the EU

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Anton Moiseienko, PhD candidate at the Criminal Justice Centre, Queen Mary University of London, contributes the following guest post:

So-called targeted sanctions—imposing travel restrictions on, or freezing the assets of, a select group of people—remain in vogue as an instrument of foreign policy and as a supplement to criminal justice in many areas, such as counterterrorism, and yet targeted sanctions have not been widely used in counteracting corruption. The United States, however, is a notable exception, with its Presidential Proclamation 7750, which authorizes the US Secretary of State to issue entry bans against corrupt foreign officials (subject to a caveat that such determinations must be informed by US national interests), and the Magnitsky Act of 2012, enacted by the US Congress in response to the death of Sergei Magnitsky, a Russian lawyer-turned-whistleblower, in a Moscow prison after he reported the embezzlement of US$230 million by high-ranked law enforcement officers. Strictly speaking, the Magnitsky Act is a human rights law rather than an anticorruption law. It authorizes the US President to blacklist (1) the individuals responsible for the prosecution and death of Mr. Magnitsky, and (2) those responsible for “gross violations of internationally recognized human rights” if committed against the persons trying to expose the illegal activity of Russian officials or against human rights activists. Yet pervasive corruption is at the heart of Magnitsky’s case, as it appears that a ring of corrupt officials was complicit in his death.

The European reaction to the Magnitsky Act was ambivalent. The OSCE Parliamentary Assembly adopted a non-binding resolution in 2012 calling upon member states to deny entry to, and freeze the assets of, the individuals on the US Magnitsky List––but to little effect. In contrast, a report by the Parliamentary Assembly of the Council of Europe (CoE) deemed US-style sanctions to be “a means of last resort” and advised against them. But despite the lack of governmental action, the public debate in Europe is not over (see, for example, here and here). With EU sanctions against Russia expanding continuously, it may be time to revisit the European debate on whether the EU should draw up its own Magnitsky List, or perhaps adopt a more general policy on targeted anticorruption sanctions.

If the EU or its individual member states proceed with Magnitsky List-style sanctions, they will have to reckon with their human rights laws—including the EU Charger of Fundamental Rights and the European Convention on Human Rights. The most important potential legal difficulties are as follows: Continue reading →

Corruption Reform in Ukraine: Too Much, Too Soon?

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On October 26, Ukrainians headed to the polls to vote in parliamentary elections that international observers labeled free and fair. On the eve of this election, the Economist nicely summed up the precariously fragmented Ukrainian state in a cartoon: a Ukrainian maiden, in the grips of a snake labeled corruption, fending off a menacing Russian bear. Indeed, corruption has plagued the functioning of the Ukrainian government on multiple fronts. Aleksandr Lapko wrote about corruption in procurement that leaves conscripted Ukrainian soldiers without the proper equipment to fight the separatists: in his words, “corruption can be as deadly as a bullet.” Former President Viktor Yanukovych’s ill-managed estate stands as a monument to both the corruption that riddled his former government and to the hopelessness of many Ukranians, Lapko included, in solving this seemingly intractable problem.

Ukraine’s leadership is eager to shed this troubled legacy of corruption and remake its government in a new, more European image. Obama hailed the October 26 elections as a positive step in that direction. President Petroshenko called out corruption as the nation’s central concern in his inaugural address to the new Parliament on November 26. Unfortunately, Ukraine seems to be following in Russia’s and other corruption-plagued countries’ ill-fated footsteps in its quest to distance itself from the post-Soviet corruption plague. By attempting to do too much to fight corruption with untested, newly created institutions, Ukraine may ultimately end up doing too little. Continue reading →

Confronting Russian Oligarchs in the West: A Call for Moderation

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Miami University Professor Karen Dawisha recently published a scathing indictment of the United States and Europe’s complicity in the Russian ruling regime’s wrongdoing, particularly its corruption at the elite level. Professor Dawisha argues that Putin and his supporters treat the West like an “a la carte menu” by protecting and multiplying their wealth abroad under the safe haven of Western rule of law, while avoiding the consequences of being held accountable for their “marauding” within Russia. This is damaging not only for Russia, but for the West as well. According to Professor Dawisha, the “presence [of Russian oligarchs] strengthens the worst aspects of our system, and weakens the best.”

One of Dashiwa’s central examples for this claim is Russian companies’ presence in Western stock markets. She argues that Russian companies’ foray into foreign stock markets has failed to “improv[e] the quality of Russian corporate governance and transparency” and should be lamented. While I will not attempt here to evaluate Professor Dawisha’s broader argument, I do believe that this particular example does nothing to support her broader point–and may ultimately illustrate its weaknesses–for two reasons:

Continue reading →

Sua Sponte Corruption Inquiries by Arbitral Tribunals: Causing More Harm than Good?

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As several prior posts on this blog have discussed (see here, here, and here), corruption has emerged as a significant and controversial issue in international investor-state arbitration proceedings, with a number high-profile cases in which the tribunal refuses to provide relief on the grounds that the underlying contract was procured through corruption. In these cases, corruption allegations usually surface at the initiative of one of the parties. For example, this summer, Djibouti filed an arbitration against Dubai-owned port operator DP World, seeking annulment of a port concession because DP World allegedly formed its contract with Djibouti for the operation of Africa’s largest container terminal through corrupt means. However, in rare instances, corruption can enter the picture without either party raising the issue during the proceedings. In these cases, the arbitral tribunal considers the issue of corruption sua sponte, even when neither party alleges corruption by the other.

Perhaps the most prominent example of this is the tribunal’s decision in Metal-Tech v. Uzbekistan. In Metal-Tech, the ICSID tribunal, in its words, “required explanations” from the parties for suspicious facts that “emerged in the course of the arbitration”–in particular the fact that Metal-Tech had paid exorbitant, seemingly unjustifiable sums for consulting services to an Uzbeki government official and individuals with close ties to Uzbeki leadership. The ICSID tribunal then essentially placed the burden of disproving corruption in light of this circumstantial evidence on Metal-Tech, which could not come up with enough evidence to overcome the tribunal’s presumption. The ICSID tribunal held it did not have jurisdiction and dismissed Metal-Tech’s claim.

On the surface, sua sponte efforts by tribunals to address corruption may seem like a positive step in the anticorruption fight. Indeed, it might seem irresponsible for the tribunal to stick its head in the sand given such facially suspicious facts. As Michael Hwang and Kevin Lim assert in a recent paper endorsing this sua sponte practice, “Tribunals must remain vigilant and alert to the possibility of corrupt dealings being hidden by one or both parties, otherwise they may become unwitting accessories to heinous acts.” But in fact, the approach adopted by the tribunal in Metal-Tech, might do more harm than good. Indeed, by engaging in sua sponte considerations of corruption, arbitral tribunals might unwittingly perpetuate corruption under several different scenarios: Continue reading →

Investment Arbitration as a Check on Corruption: The Yukos Award

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In a previous post on this blog, Sam raised the possibility that under the logic of World Duty Free v. Kenya, investment treaty arbitration rules might actually encourage state officials to engage in corruption, because corrupt acts by an investor (even when the state is also implicated) can be used to escape state liability in investment arbitration. Even if Sam’s point is true, however, it is important to acknowledge that investment arbitration can be a check on corruption in many instances. In fact, as the Yukos v. Russian Federation award issued against the Russian government this past summer demonstrates, Sam may be pointing out the exception, not the rule. Indeed, this $50 billion award – the largest international arbitration award in history – demonstrates the power of investment arbitration to bring corruption to light and act as an outside check on corrupt states. Continue reading →

Corruption as Culture and Health Care Fraud in Brooklyn

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The astonishing prevalence of health care fraud in the Russian-speaking communities of Brighton Beach and Coney Island in New York City presents an interesting case study on the causes of corruption. The Brighton Beach-Coney Island area is populated by people who immigrated from one of the most corrupt countries in the world to one of the least. You can take the person out of the corrupt system, but does this remove the propensity to engage in corrupt acts from the person?

In the wake of a recent spate of health care fraud scandals in Russian-speaking New York City communities (as well as a scheme to defraud Medicaid perpetuated by dozens of Russian diplomats), the facts and some commentators suggest no. Brighton Beach has the second highest rate of Medicaid and Medicare-related malfeasance in the United States. In February 2012, federal authorities uncovered the largest no-fault insurance fraud scheme in United States history, which was operated out of Brighton Beach-based clinics. A law-enforcement official drew a direct link between “the Russian mind-set” that “if you’re not scamming the government…you’re looked upon as a patsy” and this widespread fraud. Professor Mark Galeotti expanded on this point, suggesting that “from cradle to grave” Russians have been inculcated to “bureaucratic systems that are parasitic and hostile, almost designed to make you pay bribes.”

I think “old habits die hard” as an explanation is too simplistic and uncomfortably resembles notions (discussed elsewhere on this blog) that corruption is an inherent cultural touchstone in certain societies. Furthermore, emerging evidence shows that Russians within Russia are developing a moral aversion to bribery.

An alternative explanation for the puzzle of the Brighton Beach health care fraud phenomenon is below. Under this model, culture is not the only, and perhaps not the first, link in the chain of causation. Continue reading →

Putin’s “Power Vertical”: Blanchard and Shleifer Revisited

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In 2000, Olivier Blanchard and Andrei Shleifer wrote a seminal paper comparing the impact of federalism on economic development in Russia and China. Blanchard and Shleifer aimed to solve the puzzle of why federalism–and, in particular, inter-jurisdictional competition–fostered economic growth in China but hampered it in Russia. Simplifying somewhat, their key conclusion was that the absence of political centralization in Russia was the culprit. With no strong national government to act as a disciplinarian, Russian localities were prone to a particular form of corruption–capture by local special interests–and localities competed for rents instead of competing for firms by making improvements we associate with open governments and economies. In Meng’s recent post about political decentralization in China, she endorses Blanchard & Shleifer’s analysis, and advises against granting Chinese regional and local governments more autonomy from the center. Implicitly, her post is a caution against moves that would make China in 2014 look like Russia looked in 2000.

But what about Russia? Fourteen years after Blanchard & Shleifer wrote their paper, political centralization is a reality in Russia — in terms of the strength of the ruling party, Russia resembles China much more closely now than it did in 2000.  So one might expect, if Blanchard & Shleifer’s analysis were correct, that local corruption in Russia should have abated, and competition between Russia’s different regions should now be growth-promoting rather than growth-retarding.  Alas, Russia’s experience over the past 14 years suggests that this has not come to pass.

Continue reading →