//The Development of the United Nations Convention against Corruption

The Development of the United Nations Convention against Corruption

The development of the United Nations Convention against Corruption was a lengthy process, which began in December 1989, following an interregional seminar hosted by the Government of the Netherlands in the Hague. Following this seminar, a series of recommendations were drawn up that laid out how best to tackle corruption on an international level. The seminar outlined a series of important prerequisites that were necessary to tackle corruption effectively, such as those which would later be outlined by Naim (1995, p. 247), which contributed to the “corruption eruption” such as increased democratisation and a freer press. This seminar, however, was the beginning of a 14 year-long process that would ultimately culminate in the development and adoption of the United Nations Convention against Corruption in December 2003. Over the next number of years, much of the UN’s work on examining corruption was completed under the auspices of the United Nations Convention against Transnational Organised Crime (2000). Arguably, this work contributed to the OECD’s convention against bribery of foreign public officials (1997), thus signalling an interest on the part of developed countries alike[1] in clamping down on bribery, in particular, and corruption more broadly (Stessens, 2001).

This post is part of a masters thesis titled: Corrupting Perceptions – An Analysis of The Impact Of The United Nations Convention Against Corruption On Corruption Perception Index Scores. You can find the full thesis available at this link.

However, during the negotiations on the United Nations Convention against Transnational Organised Crime (UNCTOC), the Ad Hoc committee tasked with negotiating the UNCTOC debated and ultimately decided that corruption was much too complex and broad an issue to be covered in any concerted way by the UNCTOC. Although some provisions on corruption did make it into the final convention, it was decided that further work was required on corruption and that corruption served as an issue that perhaps warranted a convention on its own merit.

From an early stage, member states from across the General Assembly agreed that consensus and building on the experience in adopting the UNCTOC should be carried through to any negotiation on a convention against corruption. This intention was achieved in resolution 55/61 (2000), where a similar Ad Hoc committee was established for the negotiation of a Convention Against Corruption (Yukins, 2007, p. 301). From the outset, there was considerable involvement from national governments through intergovernmental policy-making bodies. An aspect, which is particularly noteworthy, is the importance ascribed to the inclusion of illegal transfer of funds and repartition of those funds being advanced by Nigeria on behalf of the Group of 77[2] and China. The group of 77 and China sought to ensure that this aspect, which signalled the increased internationalisation of corruption, was carried through; this was achieved through the preparation of a draft resolution. The group of 77 and China were ultimately successful in ensuring that a core concern of developing countries was included in the final version of the convention. Ultimately, articles 51 – 59 cover the issue of asset recovery and is considered a key provision which inspired ratification by developing countries (Hechler et al., 2011, p. 10).

Following the adoption of resolution 55/61 in the General Assembly in 2000, work began to accelerate within the Ad Hoc Committee, and an offer to host an informal preparatory meeting in Buenos Aires in December of 2001 was extended on behalf of the government of Argentina. The General Assembly provided clear terms of reference and requested the negotiation to be completed by the end of 2003. This firm deadline was seen as important, highlighting both that the international community was serious in its commitment to tackling corruption, alongside showing “tangible proof that significant, ground-breaking new legal instruments can be produced in the United Nations within a pre-determined and reasonable time frame” (Vlassis, 2015, p. 130). Following the preparatory meeting in 2001, the Ad Hoc Committee began working in January of 2002 and held seven two-week-long sessions, which culminated in the presentation of a draft of the convention in October 2003. This was a significant achievement, considering the over 130 delegations who, through complex negotiations, came to develop an innovative new convention which was open for signature by December 2003 and effective from 2005 (Vlassis, 2004).

It is important to recognise the unique role of the UNCAC, as it is the only legally binding universal anti-corruption instrument which currently exists. Indeed, many of the mandatory provisions contained within the convention go much further than any previous anti-corruption instruments have ever attempted. As of June 2019, the vast majority of countries have both signed and ratified the convention, as can be seen in Figure 1 below (United Nations Office of Drugs and Crime, 2019). It is both this staggered ratification process within the UNCAC, alongside its unique and ground-breaking approach in outlining provisions to address corruption, that go well beyond any previous international conventions, and which serve as key motivations in analysing its impact.

 

Ratification of UNCAC

However, whilst the UNCAC serves as an important constituent part of international anti-corruption policy, it encounters considerable criticism, specifically with regards to the structure of the UNCAC, and what ratification does and does not mean with regards to state obligations and monitoring. A number of scholars point to the need to track, not only ratification but also the implementation of the UNCAC provisions in order to gain a fuller picture of the likely effect of the UNCAC having a tangible impact in addressing corruption (Hechler et al., 2011; Hussmann and Hechler, 2008). Indeed, as outlined within Hechler et al. (2011), we can see that the political power networks, which enable and sustain corruption in developing countries, can lead to the UNCAC facing severe challenges. This can most frequently be seen within addressing state capture, elite power networks, alongside the technical and policy challenges inherent within the integration of international instruments into domestic policy frameworks. However, Argandoña (2007, p. 491) goes as far as to state that ratification and adoption of the UNCAC would likely have a “major” impact on reducing the level of corruption. Thus, considering many of the articles contained within Chapter II focus on institutional structure and state obligations to prevent corruption, it is clear to see how such incorporation into domestic policy could serve to reduce incidents of corruption.

 

We can also see consistent criticism of the limited enforcement and monitoring mechanisms included within the UNCAC originally (Webb, 2005, pp. 219-222; Argandoña, 2007, p. 490; Hechler et al., 2011, pp. 22-24). This is a problem that has undermined the ability of the UNCAC to deliver meaningful change following ratification, as there were originally no provisions for monitoring its adoption and enforcement. The focus on provisions to implement, as opposed to mandating implementation further, serves to undermine the potential of the UNCAC to be more robust and effective, alongside the problem of leaving much of the provisions to be open to adjustment pending adoption into domestic law, which can lead to a more subdued policy being implemented in the national context. Several scholars point towards this particular shortfall of the UNCAC being particularly detrimental to its effectiveness. Indeed, Hechler et al. (2011, p. vii) go on to state that theUNCAC is not very specific about the role of oversight institutions. Its focus on governments, especially executives, as the primary actors in anti-corruption reform makes it especially weak in addressing institutions for checks and balances, such as the judicial and legislative branch”. We can see similar critiques echoed by Argandoña (2007, p. 490), Webb (2005, p. 218), and Yukins (2007, p. 313). The weakness of oversight initially led to the convention being seen as relatively toothless in achieving its ambitious provisions; however, following consultations it was decided in Doha, Qatar, in 2009, that a raft of review mechanisms would be implemented, as outlined within Resolution 3/1 (United Nations Office of Drugs and Crime, 2009). Most notable was the provision for a peer review of implementation performance of a country by two other countries, with one being from the same regional grouping alongside another state which is drawn from lots (United Nations Office of Drugs and Crime, 2011). There were a number of “guiding principles” for this particular mechanism; of specific relevance was the search to share “best practice” implementation, alongside ensuring that the review was “non-adversarial and non-punitive, without any form of ranking” (United Nations Office of Drugs and Crime, 2011). The increased focus on reviewing performance, whether through self-assessments, peer reviews, or expert country reviews, which began in 2010, serves to add more nuance to measuring the effectiveness of adoption of the UNCAC provisions into domestic policy.

[1] Specifically spearheaded by the United States to level the playing field following the adoption of the FCPA in 1977

[2] The Group of 77 at the United Nations is a coalition of 134 developing nations, designed to promote its members’ collective economic interests and create an enhanced joint negotiating capacity in the United Nations.

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Jason Deegan is a PhD Candidate (Stipendiat) and research fellow at the University of Stavanger. His work primarily focuses on; Innovation, Regional Studies, Smart Specialisation and Policy.