Transcript International Conventions Combating Corruption

EuropeAid
International Conventions Combating
Corruption
Mr Sumedh Rao, Governance & Social Development
Resource Centre (GSDRC)
European Commission Training Seminar: EC Support to Governance
in Partner Countries (Africa focus)
4-8 July 2011
International Conventions Combating
Corruption
• OECD Convention on Combating
Bribery
• United Nations Convention against
Corruption (UNCAC)
• African Union Convention on
Preventing and Combating Corruption
EuropeAid
Historical Context
•
•
•
•
•
•
•
•
EuropeAid
1810 Napoleonic Code
1977 Foreign Corrupt Practices Act (FCPA)
1996 Inter-American Convention against Corruption
1997 OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions
1998 Council of Europe Criminal Law Convention on
Corruption
1999 Council of Europe Civil Law Convention on Corruption
2003 African Union Convention on Preventing and Combating
Corruption, AUCAC
2003 United Nations Convention against Corruption, UNCAC
OECD Convention on Combating Bribery
EuropeAid
• 1997 OECD Convention on Combating
Bribery of Foreign Public Officials in
International Business Transactions
• 38 Signatories:
o OECD Members
o Argentina
o Brazil
o Bulgaria
o Estonia
o Slovenia
o South Africa
• All signatories recently adopted the
2009 Anti Bribery Recommendation
OECD Convention on Combating Bribery
EuropeAid
• Primarily focused on the ‘supply side’
of bribery
o
(i.e. those that give the bribe –
voluntarily or not)
• Defines and criminalises the act of
bribing foreign officials
• BUT Does not cover private-to-private
bribery
• No prevention, witness protection,
whistleblowers, facilitation payments
OECD Convention on Combating Bribery
EuropeAid
• Signatories must:
o Establish, as a crime, the bribery of
public servants within national legal
frameworks
o Provide means and measures to:
‘prevent, detect, investigate,
prosecute and sanction foreign
bribery’
• Broad interpretation of territorial basis
for jurisdiction
o  Easier to sanction cross-border
bribery
OECD Convention on Combating Bribery
EuropeAid
• Implementation and monitoring through
OECD Working Group on Bribery in
International Business Transactions
• Two phase reviews:
o Phase One: Evaluates adequacy of
signatory country’s legislation to
implement the Convention
o Phase Two: Assesses whether a
country is applying this legislation
effectively
• Participating delegates are subject to
evaluation AND expected to act as
evaluators
• BUT Lack of active enforcement by
majority of parties so far
4 key pillars of the United Nations
Convention against Corruption (UNCAC)
Prevention
(Art. 5-14)
Asset
Recovery
(Art.51-59)
EuropeAid
Criminalization
(Art. 15-42)
International
Cooperation
(Art.43-50)
United Nations Convention against
Corruption (UNCAC)
Prevention:
• Effective and coordinated anticorruption policies
• Anti-corruption bodies
• Competitive and fair public
procurement
• Independent judiciary
• Fair and transparent private sector
EuropeAid
United Nations Convention against
Corruption (UNCAC)
Criminalization and law enforcement
• Mandatory offences – bribery,
embezzlement, money laundering,
obstruction of justice
• Other criminal offences – passive
bribery, influence trading, abuse of
function
International cooperation
• Extradition
• Mutual legal assistance in
investigations, prosecution and legal
proceedings
EuropeAid
United Nations Convention against
Corruption (UNCAC)
Asset recovery
• “The return of assets is a fundamental
principle of this Convention…”
• States Parties must require their
financial institutions to be vigilant
• Return of assets:
o
Embezzled public funds Return to
requesting Party
o
Proceeds of other offences of corruption
Return to requesting Party
o
Confiscated property  Returned to the
requesting Party or for compensating
victims
EuropeAid
United Nations Convention against
Corruption (UNCAC)
• Self-assessment system
(UNODC)
• Peer review process:
o
o
o
Each State reviewed by two
other States. State under
review should be involved
Governmental experts will be
appointed by States to carry
out reviews
Active dialogue between the
country under review and
reviewers is a key component
of the process
EuropeAid
UNCAC Implementation Challenges
• Weak on enforcement tools – e.g. accountability
mechanisms
• Does not address political
dynamics which hinder
anti-corruption reform
• Self-assessment does not
consider context
• May not be prescriptive
enough relating to oversight
institutions
BUT
• Can contribute to public debate
• Can improve quality of rules – i.e. institutional legislative
framework – and provide mutual legal assistance
EuropeAid
The African Union Convention on
Preventing and Combating Corruption
• No definition of corruption but explicitly recognises
particular acts of corruption and related offences
• Mandatory offences:
o
Active and passive bribery of national
public officials;
o
Active bribery of foreign and
international public officials;
o
Embezzlement, misappropriation or
other diversion of property by a public official; and,
o
Laundering of the proceeds of corruption.
EuropeAid
The African Union Convention on
Preventing and Combating Corruption
• Includes the following acts as mandatory that the UNCAC
does not:
o
Passive bribery of foreign and
international public officials;
o
Active and passive bribery in the
private sector;
o
Trading in influence;
o
Embezzlement, misappropriation or
other diversion of property in the
private sector; and,
o
Illicit enrichment.
EuropeAid
The African Union Convention on
Preventing and Combating Corruption
• Set of provisos to integrate into all public officials’ Codes
of Conduct
• Proposes special control body to:
o develop and monitor
implementation of codes of
conduct,
o raise awareness, and
o provide training for public officials
on ethical good-practice.
• Establish, maintain and strengthen independent national
anti-corruption agencies.
EuropeAid
The African Union Convention on
Preventing and Combating Corruption
• Emphasis on dealing with proceeds of corruption:
o
State Parties enact laws to empower authorities to seize financial
documents
o
Measures to establish conversion, transfer
and disposal of proceeds of corruption
• Advisory Board on Corruption:
o
promote anti-corruption work;
o
develop methodologies;
o
collect information on corruption and behaviour
of multinational corporations working on the African continent;
o
advise the governments on implementation of convention;
o
develop codes of conduct for public officials; and
o
build partnerships
EuropeAid
The African Union Convention on
Preventing and Combating Corruption
• States Parties must:
o
Submit reports regularly to the AU’s Executive Council
detailing progress in compliance.
o
Have their national anti-corruption
authorities annually report to the
Advisory Board on implementation
progress
o
Build partnerships with the African
Commission on Human and Peoples’ Rights,
African civil society, and governmental, intergovernmental
and non-governmental organisations to facilitate dialogue in
the fight against corruption and related offences.
EuropeAid
Overview of OECD, UNCAC and AUCPCC
Name
Year
Reach
OECD
1997
UNCAC
2003
AU
2003
Convention
on
Prevention
and
Combating
Corruption
Measures
Advantages
Weaknesses
Offences
Global/in Criminalisation and mutual
terlegal assistance measures,
regional as well as requirements
regarding company
accounting
Addresses supply side of
international corruption with
regard to the main exporting
nations.
Provides for extensive and
rigorous monitoring of countries´
compliance with the Convention
Unresolved:
Bribery –
Bribery acts in relation foreign public
to foreign political
officials
parties.
Advantages promised
or given to any person
in anticipation of that
person becoming a
foreign public official.
The role of off-shore
centers in bribery
transactions.
Global
Prevention,
criminalization,
international cooperation
Innovation – asset recovery,
broadest range
Monitoring
Not all art. binding
Public/private
recognized
Regional
prevention,
criminalization, regional
cooperation, mutual legal
assistance and recovery of
assets
Comprehensive approach,
mandatory provisions with
respect to private-to-private
corruption and on transparency
in political party funding
mandatory requirements of
declaration of assets by
designated public officials and
restrictions on immunity for
public officials
Not in force
bribery (domestic or
foreign), diversion of
property by public
officials, trading in
influence, illicit
enrichment, money
laundering and
concealment of
property
Public and private
EuropeAid
EuropeAid
International Conventions Combating
Corruption
Mr Sumedh Rao, Governance & Social Development
Resource Centre (GSDRC)
European Commission Training Seminar: EC Support to Governance
in Partner Countries (Africa focus)
4-8 July 2011