International Conventions Combating Corruption

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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     EuropeAid


               Corruption

• OECD Convention on Combating
  Bribery
• United Nations Convention against
  Corruption (UNCAC)
• African Union Convention on
  Preventing and Combating Corruption
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)           EuropeAid




    Prevention                Criminalization
   (Art. 5-14)                (Art. 15-42)




    Asset                             International
  Recovery                            Cooperation
(Art.51-59)                          (Art.43-50)
United Nations Convention against       EuropeAid


Corruption (UNCAC)
Prevention:
• Effective and coordinated anti-
  corruption policies
• Anti-corruption bodies
• Competitive and fair public
  procurement
• Independent judiciary
• Fair and transparent private sector
United Nations Convention against        EuropeAid


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
United Nations Convention against                  EuropeAid


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
United Nations Convention against    EuropeAid


Corruption (UNCAC)
• Self-assessment system
  (UNODC)
• Peer review process:
  o   Each State reviewed by two
      other States. State under
      review should be involved
  o   Governmental experts will be
      appointed by States to carry
      out reviews
  o   Active dialogue between the
      country under review and
      reviewers is a key component
      of the process
UNCAC Implementation Challenges                                   EuropeAid



• 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
The African Union Convention on                                 EuropeAid
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.
The African Union Convention on                             EuropeAid
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.
The African Union Convention on                                   EuropeAid
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.
The African Union Convention on                                             EuropeAid
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
The African Union Convention on                                       EuropeAid
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.
  Overview of OECD, UNCAC and AUCPCC
Name      Year    Reach      Measures                     Advantages                          Weaknesses                 Offences
                                                                                                                                          EuropeAid
OECD      1997    Global/in Criminalisation and mutual    Addresses supply side of            Unresolved:                Bribery –
                  ter-      legal assistance measures,    international corruption with       Bribery acts in relation   foreign public
                  regional as well as requirements        regard to the main exporting        to foreign political       officials
                            regarding company             nations.                            parties.
                            accounting                    Provides for extensive and          Advantages promised
                                                          rigorous monitoring of countries´   or given to any person
                                                          compliance with the Convention      in anticipation of that
                                                                                              person becoming a
                                                                                              foreign public official.
                                                                                              The role of off-shore
                                                                                              centers in bribery
                                                                                              transactions.


UNCAC     2003    Global     Prevention,                  Innovation – asset recovery,        Monitoring                 Public/private
                             criminalization,             broadest range                      Not all art. binding       recognized
                             international cooperation
AU         2003   Regional   prevention,                  Comprehensive approach,             Not in force               bribery (domestic or
Convention                   criminalization, regional    mandatory provisions with                                      foreign), diversion of
on                           cooperation, mutual legal    respect to private-to-private                                  property by public
Prevention                   assistance and recovery of   corruption and on transparency                                 officials, trading in
and                          assets                       in political party funding                                     influence, illicit
Combating                                                 mandatory requirements of                                      enrichment, money
Corruption                                                declaration of assets by                                       laundering and
                                                          designated public officials and                                concealment of
                                                          restrictions on immunity for                                   property
                                                          public officials                                               Public and private
                                                                 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

				
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