How the United Nations Convention Against Corruption has improved on previous approaches to the regulation of international corruption?
The Kyoto Declaration of the Fourth UN Congress in 1970 started the ball rolling for a UN convention that would work to address the problems related to international corruption.[1] In 2000, the UN General Assembly Resolution initiated the UNCAC which came into force in 2005.[2] Prior to 2005 however, there were numerous pieces of domestic legislation that had been passed with the aim of addressing international corruption and its related perils. The need for the UNCAC was partly due to the shortcomings of such conventions. It is argued that whilst the UNCAC addresses some of the problems with domestic law, much remains to be done.
As an introduction, one should note that there has been a contextual change between the settings for domestic laws and the emergence of the UNCAC; whilst corruption has always been a problem, rapid globalisation in recent years and the proliferation of trade has meant that the previous domestic responses have had to be replaced with more global answers to corruption.[3] The IMF defined corruption as the abuse of public authority or trust in the pursuit of private benefit. The private sector is new to the corruption arena; it was purely a public-sector-focussed concern historically.[4]
An example of previous domestic law is that of the US Foreign Corrupt Practice Act 1977; this act has been criticised for bringing very few prosecutions under its narrow interpretation of corruption as limited to bribery.[5] Equally, another shortfall of the FCPA is that it is a defence to a bribery claim if the official’s local laws allow such a payment to be made; the problem here of course being that this puts the FCPA at the mercy of foreign laws which may have conflicting views relating to bribery and corruption.[6] Other international tools have also targeted corruption, the UN Convention Against Transnational Organised Crime 2003 being another, this is again criticised for confining the definition of corruption to bribery alone.
In this respect, the UNCAC, which recognises that “corruption constitutes a threat to stability and security of societies, undermining the institutions and value of democracy […] and jeopardising sustainable development and the rule of law”[7] is effective in that it refrains from limiting the definition of corruption to bribery of foreign public officials alone. The UNCAC is wider in that it addressed the bribery domestic officials as well as those acting in a private capacity. Furthermore, in moving away from solely concentrating on bribery, ratifying countries are required to criminalise embezzlement, trading in influence, and abuse of functions.[8] The UNCAC also includes preventative measures, such as the establishment of anti-corruption bodies and the promotion of integrity in public administration.
Despite being the first truly global anti-corruption instrument, shortcoming remains. The UNCAC has been criticised for a weak monitoring system in relation to the Articles and those developing countries that have recently joined or have yet to join will require significant assistance in relation to the extensive changes that will have to be made to their laws.[9]
[1] Nihal Sri Ameresekere, Un Convention Against Corruption to Combat Fraud and Corruption: A Cancerous Menace with Mere Rhetoric Subverts Un Convention, (Authorhouse, 2011), 9.
[2] Ibid.
[3] Patrycja Szarek-Mason, The European Union's Fight Against Corruption: The Evolving Policy Towards Member States and Candidate Countries, (Cambridge University Press, 2010), 5.
[4] Ibid.
[5] Stuart H. Deming, The Foreign Corrupt Practices Act and the New International Norms, (American Bar Association, 2010), 4.
[6] Ibid, 26.
[7] Preamble, UNCAC.
[8] Articles 15-19 UNCAC.
[9] Asian Development Bank, OECD, ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Strategies for Business, Government and Civil Society to Fight Corruption in Asia and the Pacific, (OECD Publishing, 2009), 70.
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