Tag Archives: UNCAC

Yet Another Misguided Proposal to Solve Corruption with an International Convention

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Entrenched corruption is a frustrating problem, so it’s tempting to invent a new international regime that can take bold action against it without relying on or being encumbered by corrupt or incompetent domestic law enforcement. An article published last week in Foreign Affairs by Alexander Lebedev and Vladislav Inozemtsev, succumbs to that temptation by proposing a “universal anticorruption convention” as a solution to grand, systemic corruption (as distinct from low-level bribery). In broad terms, Lebedev and Vladislav envision a convention that would “clearly define the crime of corruption, codify the principles of good governance,” and “establish a supranational governing body, dedicated investigative and police forces, and a specialized court,” with signatories agreeing to “allow[] international investigators to act freely on [their] territory, and permit[] international prosecution of [their] citizens for corruption crimes.”

The article is short on details about these proposed institutions; the bulk of the article is devoted instead to the proposed convention’s enforcement mechanism. And there the proposal is quite radical: Signatories would be required to “radically curb their financial ties” with non-members, to “identify all assets controlled on their territories by the subjects of nonmember states (both individuals and companies)”–regardless of whether the assets are the proceeds of corruption–and, by an agreed deadline, to “monetize[e] and repatriate[e]” all of these assets. Under the convention, citizens of non-member states could not “open[] accounts in member countries’ banks, establish[] companies on their territories, [or] acquir[e] local real estate.” And member states would also be required to bar immigration from non-member states (at least of “young, independent people”), because the “freedom to leave” a corrupt state reduces the pressure to change from within.

I agree with Lebedev and Inozemtsev that grand corruption is a serious problem, and I commend them on their willingness to explore radical new solutions. But their proposal is absurd. I can’t imagine any state signing on to it, and I don’t think any state should. Their proposal would not only be ineffective. Its implementation would be catastrophic.  Continue reading →

Reflections on the Anticorruption Movement

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The World Bank’s Integrity Vice-Presidency is celebrating its 15th anniversary.  It recently asked a number of individuals for their thoughts on the anticorruption movement over the past 15 years.  INT’s questions and my replies below.  Continue reading →

UN, Heal Thyself: The UN’s Embarrassing Failure to Protect Whistleblowers

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The United Nations has positioned itself as one of the leading global voices against corruption, principally through the UN Convention Against Corruption (UNCAC). Among the many vital topics covered by UNCAC is the protection of whistleblowers. UNCAC Article 33 provides:

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.

Though this provision is framed in non-mandatory terms, the UN and associated advocacy bodies clearly treat whistleblower protection as critical, both for countries and for the private businesses that the UN has pushed to join the UN Global Compact.

But what about the United Nations itself? Secretary General Ban-Ki Moon has declared that the UN has “developed a strict system of internal controls” and that the UN will “continue to remain vigilant and work hard to set an example.” And the UN’s Ethics Office promises to “protect[] staff from being punished for reporting misconduct or for cooperating with an official audit or investigation.” Providing protection to staff, the Ethics Office explains, “strengthens accountability and maintains the integrity of [the UN’s] operations and programmes.”

Sounds good.  But the actual UN practice is much more troubling–indeed, it should be downright embarrassing.  This was driven home most clearly in a decision that the United Nations Appeals Tribunal handed down this past September concerning the whistleblower James Wasserstrom, but the issue goes beyond any one individual case to the entire UN system–or lack thereof–for protecting internal whistleblowers from retaliation. I’m frankly surprised that this issue hasn’t gotten more press in the anticorruption community. Continue reading →

Who Guards the Guardians in the Anticorruption Battle? Compelling Prosecutors to Take Action

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Article 30(3) of UNCAC calls upon state parties to ensure that any legal discretion pertinent to the prosecution of corruption is exercised to “to maximize the effectiveness of law enforcement.” Yet there is evidence that prosecutors do not always exercise their discretion in anticorruption cases in a manner that conforms to this principle. Prosecutorial decisions to shelve or terminate a case might instead be influenced by economic considerations — as when a large financial institution is involved, or when prosecution risks losing a valuable foreign investor — and by political considerations — as when the case may influence foreign diplomatic relations or when the case involves senior officials or other parties close to the governing regime.

There is no shortage of such troubling cases in both developed and developing countries. One of the best-known is the BAE Systems/Al-Yamamah case, which involved credible allegations that the British multinational had paid substantial bribes to senior Saudi Arabian officials in connection to a major arms deal. The UK investigation into the bribery allegations was brought to an end on grounds of public interest. The British government, and some of its defenders, emphasized the need to combat terrorism through maintaining relationship with Saudi Arabia with all underlying intelligence cooperation. Nevertheless, cases of this kind impair progress against entrenched corruption. Even if such cases are relatively infrequent, their existence risks depriving both the UNCAC treaty and domestic anticorruption laws of their deterrent effect.

If public prosecutors sometimes fail in their responsibility as anticorruption “guardians” by shelving or dropping investigations, what can be done? Long term solutions might require broader systemic reform, but there are some actions that could be taken, under the rubric of the UNCAC, to pressure or compel prosecutors to fulfill their responsibilities: Continue reading →

More on the Tension between Analysis and Advocacy for Anticorruption Academics

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A couple weeks back I posted some brief reflections that  alluded to the possibility of the tension,  between academics and advocates. I asserted this tension was something I’d observed, but I didn’t give any specific examples. Partly because of that weakness in the original post, I thought I’d follow up on this topic, using a concrete example of the tension I had in mind.

That example is drawn from a debate I’ve engaged in elsewhere on this blog with Maud Perdriel-Vaissiere, an advisor to the UNCAC Coalition. In brief, the substantive issue that she and I (and others) have been arguing about is the extent to which the UN Convention Against Corruption (UNCAC) obligates law enforcement agencies that recover judgments or settlements against bribe-paying firms to share those proceeds with the governments of the countries where the bribes were paid. I won’t go into all the details here. (For those who are interested, some of my earlier posts on the topic can be found here and here, and other contributors to this blog have discussed related issues here, here, here, and here.) In my most recent post on the subject, I specifically criticized Ms. Perdriel-Vaissiere’s discussion of the issue in a post she published on the UNCAC Coalition’s blog. Among other criticisms, I accused Ms. Perdriel-Vaissiere of failing to make basic distinctions between different types of legal recovery, of failing to acknowledge their different treatment under UNCAC, and of citing misleading statistics that conflated these different forms of recovery. I described the legal analysis in the post as “sloppy” and concluded with some harsh words: “The anticorruption community can and should do better.”

Ms. Perdriel-Vaissiere submitted a lengthy, detailed, and thoughtful rebuttal, which you can read in the comments section for the original post. Much of her response focuses on substantive matters where she and I respectfully disagree, and I leave it to interested readers to make their own determinations on those issues. But part of her reply caught my attention because it so nicely illustrates, in a much more concrete form, the “analyst vs. advocate tension” I alluded to generally in my post on the role of academics. Here’s what Ms. Perdriel-Vaissiere has to say in my response to my criticism that she cites misleading statistics that don’t take into account the differences between distinct forms of recovery: Continue reading →

The Corruption Conviction of Former Virginia Governor Robert McDonnell

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Former Virginia Governor Robert McDonnell and his wife Maureen were found guilty September 4 of accepting thousands of dollars in luxury goods, an expensive vacation, and $120,000 in loans in return for using the powers and perquisites of the governor’s office to promote a local businessman’s products.  Although proving a public servant took a bribe is never easy, the McDonnell conviction shows that it is not impossible.  It also shows what prosecutors can do to ease their task. Continue reading →

Linking Anticorruption to Human Rights Accountability

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Corruption and human rights are closely related. Vulnerable groups–including the poor, minorities, women, children, and people with disabilities–are most likely to suffer the effects of corruption, which can compromise their access to basic services, health, and education. Anticorruption efforts can threaten human rights—whistleblowers, journalists, and other anticorruption defenders are often at risk of retaliation in the form of imprisonment, threats, violence, or death.  And countries where corruption is pervasive consistently demonstrate less commitment to the protection of human rights: Of the 15 countries with the lowest scores on Transparency International’s Corruption Perceptions Index of 2013, seven have the worst Freedom House ratings for political rights and civil liberties.

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Fixing the Mutual Legal Assistance Regime: Some Thoughts on Reform

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Last week I reported that the United States was often slow to respond to requests from other nations for evidence needed to prosecute corruption cases in their courts and that as a result some cases have had to be dismissed.  I also noted that, as of spring 2013, 4500 requests awaited processing, a backlog the Justice Department blames on a shortage of personnel.  In a comment on the post. Matthew asks two questions:  1) are there other ways besides adding staff that countries can reduce the delay in responding to requests for legal assistance and 2) is the U.S. the only country with a large backlog of requests.

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