Tag Archives: UN Convention Against Corruption

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 →

UN Guide for National Anticorruption Strategies

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The United Nations Office of Drugs and Crime recently published National Anti-Corruption Strategies: A Practical Guide for Development and Implementation, designed to assist countries considering the drafting (or revision) of a “National Anticorruption Strategy” document as part of an effort to comply with their obligations under the UN Convention Against Corruption (UNCAC). (Although the Guide will be formally presented/unveiled at the upcoming UNCAC Conference of States Parties meeting in St. Petersburg, the online version is already available.)

Full disclosure: Both Rick and I were heavily involved in the drafting of this Guide (indeed, at the early stages of the process Rick used this blog to solicit — quite successfully — input on the project). For that reason, I’ll refrain from praising (or criticizing) this Guide. I will merely note that it exists, and that it may be of interest to some of our readers, particularly those who are currently either considering or actively working on the development of this sort of national anticorruption strategy document. I’ll also invite readers to share their criticisms of the Guide, in the hopes that frank, unsparing criticism will be helpful both to those working on these issues at the front lines, and to those of us who work on preparing guidance documents like this in the future.

A Regional Anticorruption Convention in the Asia-Pacific?

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In my last post I discussed Transparency International’s proposal for an “ASEAN Integrity Community” (AIC) to promote and harmonize effective anticorruption policies in the Southeast Asian region. The proposed AIC would be part of the formal ASEAN framework but would not impose additional legal obligations on member states. This got me thinking a bit more about whether it would be a good idea to push for a more robust international anticorruption convention, either in ASEAN or in the Asia-Pacific region more generally. (I’m not alone in having at least entertained this idea: the Thai National Anti-Corruption Commission has apparently been developing, and occasionally floating, a proposal for an ASEAN Anti-Corruption Convention.) After all, in addition to the two main global anticorruption conventions—the UN Convention Against Corruption (UNCAC) and the OECD Anti-Bribery Convention—there are also a number of regional anticorruption conventions, including the Inter-American Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, the League of Arab States Anti-Corruption Convention, the Council of Europe’s Civil and Criminal Law Conventions on Corruption, and the European Union’s Convention against Corruption involving Officials. Indeed, the Asia-Pacific region is one of the few regions in the world (along with South Asia, Central Asia, and a handful of others) that lacks a regional anticorruption convention of some kind. Is there a case for creating such a regional instrument in the Asia-Pacific (or, more narrowly, in ASEAN)?

I think, upon further reflection and discussions with people who have much more expertise than I do, that the answer is probably no. But nevertheless I thought it would be worth at least floating the idea, if only to stimulate further discussions. Continue reading →

Do We Need an “ASEAN Integrity Community”?

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The Association of Southeast Asian Nations (ASEAN) is taking a major step toward greater regional economic integration at the end of this year, with the long-awaited launch of the “ASEAN Economic Community”, a region-wide agreement designed (among other things) to promote the freer movement of goods, capital, and labor throughout the region. Yet many worry that this greater economic integration might exacerbate the region’s already serious struggles with corruption, especially cross-border corruption. Largely in response to that concern, last April Transparency International published a report calling for the creation of an “ASEAN Integrity Community” (AIC) that would, in the words of the report, “create a coherent regional anti-corruption strategy” and “provide space for civil society and the business sector to be able to have input into and shape this regional anti-corruption agenda.”

It’s an intriguing idea, and the report is worth reading. (Full disclosure: I wrote a background paper for one of the meetings TI organized last September to discuss corruption challenges in ASEAN. Indeed, substantial chunks of the background paper that I wrote appear – uncredited – in the TI Report on the AIC.) Certainly, there’s a good case to be made for greater regional cooperation on anticorruption challenges within ASEAN. That said, I found the TI report on the proposed AIC frustrating in several respects, most significantly the vagueness regarding how, exactly, the AIC would operate, and how it would add value above and beyond the existing regional forms and groupings that address corruption issues. I realize that this is an early-stage proposal, designed to generate political momentum for greater action and political buy-in (particularly in advance of the International Anti-Corruption Conference in Malaysia next week), so it may not really fair to criticize the report for being a bit light on specifics. Still, it’s worth reflecting a bit more on what we might hope to get out of something like an AIC, and whether this is the right way to go about tackling what most experts would agree is a genuine and serious set of problems and challenges. Continue reading →

The Problem With Framing Freedom From Corruption as a Human Right

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It is widely recognized that corruption and human rights violations are linked. Corruption, after all, facilitates the violation of human rights–not only civil and political rights, but social and economic rights as well. (This blog has previously discussed those linkages here and here.) Some scholars and activists have gone further, arguing that freedom from official corruption is itself a human right. A useful recent example is a Brookings Paper by attorney Matthew Murray and Professor (and occasional GAB guest contributor) Andrew Spalding, but they are not alone. Advocates of this position claim that reframing corruption as a human rights violation is needed to instill a greater sense of obligation among national governments and to promote more robust enforcement.

I am skeptical. I do not deny the deep connection between human rights and anticorruption, particularly in developing countries, where access to basic human rights such as food, shelter, water, and education, is often hampered by rampant corruption. But I do not think that trying to establish “freedom from official corruption” as a human right per se (as opposed to recognizing the ways in which corruption contributes to human rights violations and other egregious social harms) is a productive use of time and energy.

Let me first summarize what I take to be the core arguments in favor of establishing freedom from corruption as a human right, and then explain why I respectfully disagree. Continue reading →

Egyptian Courts Should Permit Money Laundering Convictions without Conviction on the Predicate Offence

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Prosecuting money laundering and corruption are inextricably interwoven. Corrupt officials, like other sophisticated criminals, frequently resort to various forms of money laundering to conceal their ill-gotten funds. That is why the UN Convention Against Corruption (UNCAC) adopted a specific article addressing money laundering. One of the legal challenges in prosecuting money laundering, however, is proving that the property involved is the proceeds of a crime. And one of the ongoing legal controversies on this point concerns whether proving that element of the money laundering offense requires, as a prerequisite, a prior or simultaneous criminal conviction for the predicate offense. Different legal systems have taken different positions on this question, which is perhaps unsurprising. More striking is the fact that, within Egypt right now, this question has divided the circuits of the Court of Cassation (the highest Egyptian criminal court), with no immediate resolution in sight.

One circuit has adopted a “restrictive approach” that requires a prior or simultaneous conviction of the predicate offense as a precondition for a money laundering conviction.  Although a majority of lower courts apply this restrictive approach, another circuit has held—in the case against former President Mubarak’s Minister of interior—that although the prosecution must prove beyond a reasonable doubt the illicit origin of the money to secure a money laundering conviction, the prosecution can establish this fact in other ways; a prior conviction for the underlying offense is not necessary. This division of opinion has persisted despite the fact that there is a provision calling for the Court of Cassation’s General Assembly to vote on controversial matters. Unfortunately, the Court does not apply this provision rigorously.

Although both positions have some merit, the Court of Cassation’s General Assembly–or, if it fails to act, the Egyptian legislature–should reject the restrictive approach and allow the prosecution to prove the elements of money laundering, even in the absence of a conviction for the predicate offense. The purported disadvantages of that approach are greatly exaggerated, and it would enhance the Egyptian government’s capacity to combat high-level official corruption, as well as other serious offenses. Continue reading →

Rescission of Contracts and Revocation of Licenses As Means to Combat Corruption

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Article 34 of the UN Convention Against Corruption (UNCAC) generally requires that each State Party “take measures … to address the consequences of corruption.” In recognition of the fact that government contracts and licensing processes have been among the areas most prone to corruption and bribery–and of the fact that the threat of criminal punishment may not be a sufficient or even viable deterrent to such corruption–UNCAC Article 34 further declares that “States Parties may consider corruption a relevant factor in legal proceedings to annul or rescind a contract, withdraw a concession or other similar instrument or take any other remedial action.” Although that second sentence of Article 34 is not mandatory, State Parties–particularly demand-side countries with an unfortunate reputation for corruption in government contracting (such as Kenya, Guinea, Indonesia and Philippines) should adopt that principle into their national laws.

Law providing for the nullification of contracts or concessions procured through corruption would be a strong deterrent to bribe-paying by firms. Although such bribery is already illegal, in some cases criminal punishments are simply insufficient to deter corrupt practices conducted in demand-side countries. Often the threat of sanctions is low, and even though some companies have been hit with substantial sanctions, this loss has been mitigated by the profits acquired by the operation of the tainted contract or license. And a company might think twice before acceding to a bribe demand from a lower-level public official (or even a high-level official) if the company knows that, by paying the bribe, they may be putting the whole contract in jeopardy if the government later decides it wants to reneg on the deal. Moreover, if a demand-side country were to adopt a law that allows for nullification of any government contract or concession procured through corruption, it would send strong signals to that international community that this country will no longer tolerate these corrupt practices. Continue reading →

Happy International Anti-Corruption Day!

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As some readers of this blog already know, today (December 9th) is International Anti-Corruption Day. Other readers may be wondering, “Huh? International Anti-Corruption Day? What’s that?”

I’m glad you asked. When the UN Convention Against Corruption (UNCAC) was opened for signature in 2003, the General Assembly’s resolution included a specific plank “decid[ing] that, in order to raise awareness of corruption and of the role of [UNCAC] in combating and preventing it, 9 December should be designated International Anti-Corruption Day.” (And you thought the UN General Assembly never decided anything important. Shame on you.)

So what should you do to celebrate International Anti-Corruption Day? It’s easy to make fun of things like this — and as should be clear, that’s a temptation I can’t entirely resist. But at the same time, I do think that raising awareness of the issue is important. And though I can’t find much about attention-raising activities in conjunction with this year’s International Anti-Corruption Day, apparently last year the UN tried to take the opportunity to launch a campaign — with slogans, Tweets, etc. — to get more attention to the issue. You can check out their website on how to “celebrate” International Anti-Corruption Day here.

One last Anti-Corruption Day thought: As I said, I’m all for raising more awareness. But at the risk of sounding like a Grinch, I think it’s fair to raise the question whether publicity gambits like this are starting to outlive their usefulness. Many in the anticorruption community–particularly those who started working on these topics in the 1990s or earlier, when it was definitely treated as marginal in many quarters–have spent a lot of time and energy trying to raise awareness about the issue. And the thing is, they’ve succeeded. The international community is aware of the problem, and takes it seriously (at least in the sense of acknowledging corruption as a legitimate concern). As I see it, the anticorruption movement is now in a tricky transitional phase: The first generation won an important battle, by getting corruption on the international agenda. The new generation needs to make more progress on figuring out what exactly to do about it. So by all means, use the International Anti-Corruption Day gimmick as a way to raise awareness. But at the same time, let’s recognize that we’re reaching the point where raising awareness isn’t really a central issue anymore.

UNCAC Does Not Require Sharing of Foreign Bribery Settlement Monies with Host Countries

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Maud Perdriel-Vaissiere, the Advisor on Asset Recovery for the UNCAC Coalition (a global civil society network committed to promoting compliance with the UN Convention Against Corruption) recently published a post on the UNCAC Coaltion blog entitled, “Is there an obligation under the UNCAC to share foreign bribery settlement monies with host countries?” Her answer is yes. Indeed, she says that the contrary position is based on a “gross misreading” of UNCAC, that UNCAC’s asset recovery provisions (in Chapter V) apply even to “stolen or embezzled funds over which foreign governments cannot establish prior ownership” (emphasis hers), and that there is “no doubt [that] there is an obligation under the UNCAC [for supply-side enforcers] to share foreign bribery settlement monies with host countries!” (The exclamation mark is hers as well.)

As readers of this blog may be aware, I think this is wrong, based on a sloppy and tendentious misreading of the language of the treaty. Though I’ve written on this before, I think Ms. Perdriel-Vaissiere’s analysis deserves a rebuttal. Continue reading →