| Signatories (orange) and Ratifications (blue) of the treaty. | |
| Drafted | 31 October 2003 |
|---|---|
| Signed | 9 December 2003 |
| Location | Mérida and New York |
| Effective | 14 December 2005 |
| Condition | 30 ratifications |
| Signatories | 140 |
| Parties | 158 |
| Depositary | Secretary-General of the United Nations |
| Languages | Arabic, Chinese, English, French, Russian and Spanish |
The United Nations Convention against Corruption (UNCAC) is the first legally binding international anti-corruption instrument.[1] In its 8 Chapters and 71 Articles, the UNCAC obliges its States Parties to implement a wide and detailed range of anti-corruption measures affecting their laws, institutions and practices. These measures aim to promote the prevention, criminalization and law enforcement, international cooperation, asset recovery, technical assistance and information exchange, and mechanisms for implementation.
The UNCAC was adopted by the United Nations General Assembly in Mérida, Yucatán, Mexico, on 31 October 2003 by Resolution 58/4. The convention was signed by 140 countries. Ecuador became the thirtieth country to ratify the Convention on 15 September 2005, and in accordance with Article 68 (1) of Resolution 58/4, it entered into force on 14 December 2005. As of 13 December 2011, the convention had been ratified, accepted, approved or acceded to by 158 countries (which became thus States Parties to the convention) as well as the European Union[2] and applies to most of the world population. The countries with a population of over 1 million, that had of 15 May 2011 not ratified were:
| Country that did not ratify | Population million |
Signed |
|---|---|---|
| Japan | 128 | Yes |
| Germany | 82 | Yes |
| Burma | 55 | Yes |
| Sudan | 44 | Yes |
| Saudi Arabia | 27 | Yes |
| North Korea | 24 | No |
| Syria | 22 | Yes |
| Côte d'Ivoire | 21 | Yes |
| Czech Republic | 11 | Yes |
| Chad | 10 | No |
| Guinea | 10 | Yes |
| Somalia | 9 | No |
| Eritrea | 5 | No |
| New Zealand | 4 | Yes |
| Oman | 3 | No |
| Swaziland | 1 | Yes |
The UNCAC is the most recent of a long series of developments in which experts and politicians have recognized the far-reaching impact of corruption and economic crimes, including money laundering that undermine the value of democracy, sustainable development, and rule of law[3] also the need to develop effective measures against it at both the domestic and international levels. International action against corruption has progressed from general consideration and declarative statements to legally binding agreements. While at the beginning of the discussion, measures were focused relatively narrowly on specific crimes, above all bribery, the definitions and understanding of corruption have become broader and so have the measures against it. The Conventions' (not only the UNCAC, but the Inter-American Convention against Corruption, the OECD Anti-Bribery Convention, the African Union Convention on Preventing and Combating Corruption) comprehensive approach and the mandatory character of many of its provisions give proof of this development. The UNCAC deals with forms of corruption that had not been covered by many of the earlier international instruments, such as trading in official influence, general abuses of power, and various acts of corruption in the private sector. A further significant development was the inclusion of a specific chapter of the Convention dealing with the recovery of assets, a major concern for countries that pursue the assets of former leaders and other officials accused or found to have engaged in corruption.
A Conference of the States Parties (CoSP) to the UNCAC was established to improve the capacity of and cooperation between States Parties to achieve the objectives set forth in the Convention, and to promote and review its implementation. The first session of the CoSP took place on 10–14 December 2006 at the Dead Sea, Jordan. At this meeting, government representatives discussed how to follow-up on the UNCAC and they committed themselves to establishing a formal monitoring system. An inter-governmental working group was established to start working on the design of such a review of implementation mechanism.[4] Two other working groups were set up to promote coordination of activities related to technical assistance and asset recovery, respectively,.[5][6]
The second CoSP was held in Bali, Indonesia, on 28 January to 1 February 2008. As for the mechanism for review of implementation, the States Parties decided, inter alia, to take into account a balanced geographical approach, to avoid any adversarial or punitive elements, to establish clear guidelines for every aspect of the mechanism and to promote universal adherence to the Convention and the constructive collaboration in preventive measures, asset recovery, international cooperation and other areas. The CoSP also reiterated its support for the Working Group on Asset Recovery, requested donors and receiving countries to strengthen coordination and enhance technical assistance for the implementation of the UNCAC, and dealt with the issue of bribery of officials of public international organizations.[7]
The next session of the CoSP took place in Doha, Qatar, from 9–13 November 2009. Pursuant to the resolutions and decisions taken by the CoSP at its second session, the CoSP was expected to concentrate on key issues regarding review of the implementation of the Convention, asset recovery and technical assistance. The CoSP also offers an opportunity to anti-corruption policymakers and practitioners to exchange views on practical matters. Furthermore, it will be preceded and accompanied by numerous side events, such as the last Global Forum (in cooperation with businesses) and a Youth Forum.[8]
The UNCAC covers five main areas: prevention, criminalization and law enforcement measures, international cooperation, asset recovery, and technical assistance and information exchange. It includes both mandatory and non-mandatory provisions.
The opening Articles of the UNCAC include a statement of purpose (Article1), which covers both the promotion of integrity and accountability within each country and the support of international cooperation and technical assistance between States Parties. They also include definitions of critical terms used in the instrument. Some of these are similar to those used in other instruments, and in particular the United Nations Convention against Transnational Organized Crime, but those defining "public official", "foreign public official", and " official of a public international organization" are new and are important for determining the scope of application of the UNCAC in these areas. The UNCAC does not provide for a definition of corruption. In accordance with Article 2 of the UN Charter, Article 4 of the UNCAC provides for the protection of national sovereignty of the States Parties.,[9][10]
The First Conference of the States Parties recognized the importance of prevention to fight corruption by going far beyond the measures of previous instruments in both scope and detail. The preventive measures cover both the public and private sectors. The chapter includes model preventive policies, such as the establishment of anti-corruption bodies and enhanced transparency in the financing of election campaigns and political parties. Anti-corruption bodies should implement the anti-corruption policies, disseminate knowledge and must be independent, adequately resourced and have properly trained staff. States are also obliged to ensure that their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit. Once recruited, public servants should be bound by codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures. Also Article 14 requires the measure to prevent money laundering. Transparency and accountability in matters of public finance must also be promoted, and specific requirements are established for the prevention of corruption, in the particularly critical areas of the public sector, such as the judiciary and public procurement. Since the combating of corruption also depends on cooperation between the State and society, the UNCAC places particular emphasis on the involvement of civil society and on the general reporting process through which the public administration reports to the people. The requirements made for the public sector also apply to the private sector – it too is expected to adopt transparent procedures and codes of conduct.[11]
Chapter III calls on States Parties to establish or maintain a series of specific criminal offences including not only long-established crimes such as various forms of bribery and embezzlement, but also conduct not already criminalized in many States, such as trading in official influence and other abuses of official functions. The broad range of ways in which corruption has manifested itself in different countries and the novelty of some of the offences pose serious legislative and constitutional challenges, a fact reflected in the decision of the Ad Hoc Committee to make some of the requirements either optional on the part of States Parties ("…shall consider adopting…") or subject to domestic constitutional or other fundamental requirements ("…subject to its constitution and the fundamental principles of its legal system…").[12] Specific acts that States Parties must criminalize include active bribery (the offer or giving of an undue advantage) of a national, international or foreign public official, and passive bribery of a national public official and embezzlement of public funds. Other mandatory crimes include obstruction of justice, and the concealment, conversion or transfer of criminal proceeds (money laundering). Sanctions extend to those who participate in or attempt to commit corruption offences.[13] The Convention goes thus beyond previous instruments of this kind that criminalize only basic forms of corruption. States are encouraged – but not required – to criminalize, inter alia, passive bribery of foreign and international public officials, trading in influence, abuse of function, illicit enrichment, private sector bribery and embezzlement, money laundering, and the concealment of illicit assets.
Furthermore, States Parties are required to simplify the provision of evidence of corrupt behaviour by, inter alia, ensuring that obstacles that may arise from the application of bank secrecy laws shall be overcome. This is especially important as corrupt acts are very difficult to prove before a court. Particularly important is also the introduction of the liability of legal persons. In the area of law enforcement, the UNCAC calls for better cooperation between national and international bodies and with civil society. There is a provision for the protection of witnesses, victims, expert witnesses and whistle blowers to ensure that law enforcement is truly effective.
Under Chapter IV of the UNCAC, States Parties are obliged to assist one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Particular emphasis is laid on mutual legal assistance, in gathering and transferring evidence for use in court, and extradition of offenders. A key issue in developing the international cooperation requirements arose with respect to the scope or range of offences to which they would apply. The broad range of corruption problems faced by many countries resulted in proposals to criminalize a wide range of conduct. This, in turn, confronted many countries with conduct they could not criminalize (as with the illicit enrichment offence discussed in the previous segment) and that were made optional as a result. Many delegations were willing to accept that others could not criminalize specific acts of corruption for constitutional or other fundamental reasons, but still wanted to ensure that countries that did not criminalize such conduct would be obliged to cooperate with other States that had done so. The result of this process was a compromise, in which dual criminality requirements were narrowed as much as possible within the fundamental legal requirements of the States that cannot criminalize some of the offences established by the Convention. According to the Convention, the principle of dual criminality can only be insisted on where the assistance would require coercive action such as arrest or search and seizure, and States Parties are encouraged to allow a wider scope of assistance without dual criminality where possible. Also, where dual criminality is required, it is sufficient that the conduct at issue constitutes a crime in both jurisdictions; the language of the laws need not coincide exactly. Cooperation in criminal matters is mandatory. In civil and administrative matters, States Parties are encouraged to do so.[14]
The agreement on asset recovery is considered a major breakthrough and many observers claim that it is also the reason for why so many developing countries have signed the UNCAC.[15] Asset recovery is indeed a very important issue for many developing countries where high-level corruption has plundered the national wealth. Reaching an agreement on this Chapter involved intensive negotiations, as the needs of countries seeking the illicit assets had to be reconciled with the legal and procedural safeguards of the countries whose assistance was sought.[16] Generally, countries seeking assets sought to establish presumptions that would make clear their ownership of the assets and give priority for return over other means of disposal. Countries from which return was likely to be sought, on the other hand, had concerns about the language that might have compromised basic human rights and procedural protections associated with criminal liability and the freezing, seizure, forfeiture and return of such assets.
Chapter V of the UNCAC establishes asset recovery as a "fundamental principle" of the Convention. The provisions on asset recovery lay a framework, in both civil and criminal law, for tracing, freezing, forfeiting and returning funds obtained through corrupt activities. The requesting state will in most cases receive the recovered funds as long as it can prove ownership. In some cases, the funds may be returned directly to individual victims.
If no other arrangement is in place, UNCAC signatories may use the Convention itself as a legal basis for enforcing confiscation orders obtained in a foreign criminal court. Specifically, Article 54(1)(a) of the UNCAC provides that: "Each State Party (shall)... take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another state party"[9] ^ United Nations Convention against Corruption Article 54 Section 1A,2A. Indeed, Article 54(2)(a) of the UNCAC also provides for the provisional freezing or seizing of property where there are sufficient grounds for taking such actions in advance of a formal request being received.[17]
Recognizing that recovering assets once transferred and concealed is an exceedingly costly, complex and all-too-often unsuccessful process, this Chapter also incorporates elements intended to prevent illicit transfers and generate records that can be used where illicit transfers eventually have to be traced, frozen, seized and confiscated (Article 52). The identification of experts who can assist developing countries in this process is also included as a form of technical assistance (Article 60(5)).
Chapter VI of the UNCAC is dedicated to technical assistance, meaning support offered to developing and transition countries in implementing the Convention. The provisions cover training, material and human resources, research, and information sharing. The Convention also calls for cooperation through international and regional organizations (many of who already have established anti-corruption programmes), research efforts, and the contribution of financial resources both directly to developing countries and countries with economies in transition, and to the United Nations Office on Drugs and Crime,(UNODC), which is the Secretariat to the Conference of the States Parties.
Chapter VII deals with international implementation through the CoSP and the UN Secretariat.
The final provisions are similar to those found in other UN treaties. Key provisions ensure that: the UNCAC requirements are to be interpreted as minimum standards, which States Parties are free to exceed with measures "more strict or severe" than those set out in the specific provisions; and the two Articles governing signature, ratification and the coming into force of the Convention.[12]
Article 63 of the UNCAC establishes a CoSP with a mandate to, inter alia, promote and review the implementation of the Convention. In accordance with Article 63(7), "the Conference shall establish, if it deems necessary, any appropriate mechanism or body to assist in the effective implementation of the Convention". [18] At its first session, held in Jordan in December 2006, the CoSP agreed that it was necessary to establish an appropriate and effective mechanism to assist in the review of the implementation of the Convention (Resolution 1/1). The Conference established an open-ended intergovernmental expert group to make recommendations to the Conference on the appropriate mechanism, which should allow the Conference to discharge fully and efficiently its mandates, in particular with respect to taking stock of States’ efforts to implement the Convention. The Conference also requested the Secretariat to assist States in their efforts to collect and provide information on their self-assessment and their analysis of implementation efforts and to report on those efforts to the Conference. In addition, several countries, already during this session of the CoSP, expressed their readiness to support, on an interim basis, a review mechanism that would combine the self-assessment component with a review process supported by the Secretariat. The "Pilot Review Programme" was established to offer adequate opportunity to test possible means for the implementation review of the UNCAC, with the overall objective to evaluate efficiency and effectiveness of the tested mechanism(s) and to provide to the CoSP information on lessons learnt and experience acquired, thus enabling the CoSP to make informed decisions on the establishment of the appropriate mechanism for reviewing the implementation of the UNCAC. The Pilot Programme is an interim measure to help fine-tune the course of action. It is strictly voluntary and limited in scope and time. The methodology used under the Pilot Review Programme was to conduct a limited review of the implementation of UNCAC in the participating countries using a combined self-assessment / group / expert review method as possible mechanism(s) for reviewing the implementation of the Convention. Throughout the review process, members of the Group engage with the individual country under review in an active dialogue, discussing preliminary findings and requesting additional information. Where requested, country visits are conducted to assist in undertaking the self-assessments and/or preparing the recommendations. The teams conducting the country visits will be composed of experts from two prior agreed upon countries from the Group and two members of the Secretariat. The scope of review under the Pilot Review Programme includes Articles: 5 (preventive anti-corruption policies and practices); 15 (bribery of national public officials); 16 (bribery of foreign public officials and officials of public international organizations); 17 (embezzlement, misappropriation or other diversion of property by a public official); 25 (obstruction of justice); 46 (mutual legal assistance), particularly paragraphs 13 and 9; 52 (prevention and detection of transfers of proceeds of crime); and 53 (measures for direct recovery of property).
The "UNCAC Coalition", established in 2006, is a network of more than 300 civil society organisations (CSOs) that is committed to promoting the ratification, implementation and monitoring of the UNCAC. It aims to mobilise broad civil society support for the UNCAC and to facilitate strong civil society action at national, regional and international levels in support of the Convention. The Coalition is open to all organisations and individuals committed to these goals. The breadth of UNCAC means that its framework is relevant for a wide range of CSOs, including groups working in the areas of human rights, labour rights, governance, economic development, environment and private sector accountability.
In addition, the main function of the International Anti-Corruption Academy, located in Laxenburg, Austria, is to, inter alia, facilitate more effective implementation of the UNCAC.
In general, the adoption of an effective follow-up monitoring mechanism is often considered to be one of the biggest challenges that still lies ahead. Many developing countries also face the challenge of implementing the demanding provisions of the UNCAC into national law, and above all into the reality of daily life. Effective technical assistance, as foreseen in the UNCAC, is therefore crucial for the successful implementation of the Convention.