First global convention against corruption to come into force

A key milestone was passed on the 15 September 2005 for the United Nations Convention against Corruption (UNCAC) with the deposit of Ecuador's instrument of ratification at the UN Treaty Office in New York. This additional ratification put the UNCAC over the threshold of 30 ratifications needed to trigger entry into force. Entry into force of the UNCAC will take place on 14 December 2005. Within one year after entry into force, the UN will convene the Conference of States Parties to discuss follow-up to the Convention.

30 ratifications are of course not enough for this global convention. In order for the UNCAC to realise its potential as a global instrument, it is important for ratification to take place in a large number of countries across all regions. Moreover, in many countries the Convention requirements still have to be implemented into national law and translated into national policies and practices.

Africa (15)	Americas (7)	Asia-Pacific (1)	Europe & Central Asia (6)	Middle East (1)
Algeria	Brazil	Sri Lanka	Belarus	Jordan
Benin	Ecuador		Croatia
Djibouti	El Salvador		France
Egypt	Honduras		Hungary
Kenya	Mexico		Romania
Libya	Paraguay		Turkmenistan
Madagascar	Peru
Mauritius
Namibia
Nigeria
Sierra Leone
South Africa
Tanzania
Togo
Uganda
The best performance	Good progress but not in North America	Ratification has not gained momentum	Only two EU countries have ratified UNCAC	A good start

• How did the UNCAC come into being?
• What does the UNCAC require?
• What does UNCAC say about international cooperation between law enforcement authorities?
• What does UNCAC say about asset recovery?
• What does UNCAC say about assistance to developing countries?
• What kind of monitoring is provided for in the UNCAC?
• What are the steps in “bringing a convention to life"?
• Which countries have ratified the UNCAC?

The UNCAC, along with other international anti-corruption instruments, is the manifestation of an international consensus that emerged in the early 1990s identifying corruption as an important problem needing to be addressed and in particular requiring internationally-agreed solutions.

The end of the Cold War removed the national security rationale for toleration or supporting corrupt regimes around the world. At the same time, the post-Cold War agenda of democratisation, accountability and transparency focused the attention of major international financial and development institutions and others on the corruption problem. Moreover, there was concern in the international community that the corruption problem was growing. Added to this, multinational companies based in the United States considered themselves disadvantaged in global markets due to the 1977 Foreign Corrupt Practices Act, which imposed criminal penalties for engaging in foreign bribery, and the US government became a leading sponsor of efforts to find a solution through an international legal framework to limit cross-border bribery.

The UNCAC was negotiated in a period of less than two years at the United Nations office in Vienna. The negotiations, which involved 129 countries, for the UNCAC began in earnest in early 2001 and were concluded at the seventh negotiating session in early October 2003. They proceeded so rapidly partly thanks to the commitment of a wide range of countries, and partly thanks to previous work on other anti –corruption conventions, and in particular the substantial work on the subject of international cooperation already done in the negotiations for the United Nations Convention on Transnational Organised Crime. Representatives of Transparency International participated in the negotiation process.

At the conclusion of the negotiations in October 2003, the text of the Convention was presented for approval by the General Assembly on 31 October 2003. Once approved, it was opened for the States to sign, starting with a signing conference in Merida, Mexico on 9-10 December 2003 where it was signed by 111 countries. International Anti-Corruption Day on 9 December marks the anniversary of this signing conference.

Transparency International representatives were present at all seven negotiating sessions of the UN Ad Hoc Committee for the Negotiation of the UN Convention against Corruption that met in Vienna between January 2001 and September 2003. TI’s representatives made oral presentations, submitted detailed written comments and met with delegations to explain their positions TI National Chapters around the world also submitted TI position papers to national governments.

The UNCAC is the only anti-corruption Convention that is truly global. It takes a comprehensive approach to the corruption problem, as a basis for effectively preventing and combating corruption. In its eight Chapters and 71 articles, the UNCAC obliges the 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, detection and sanctioning of corruption, as well as the cooperation between State Parties on these matters. The UNCAC is unique as compared with other conventions not only in its global coverage but also in the extensiveness and detail of its provisions.

It should be noted that some of the provisions of UNCAC are mandatory while others are optional or left to the discretion of governments as to whether they will implement them. And many of the mandatory provisions require governments to take action and offer a range of possible implementation options for them to choose from.

Coverage and definitions
A noteworthy aspect of UNCAC is that it includes a very broad definition of the term “public official” which includes any person holding a legislative, executive, administrative or judicial office of a State Party. It also covers officials of public international organisations and requires punitive measures for those who bribe them.

Preventive measures
The UNCAC establishes obligations for governments with regard to preventive measures in the following areas (For detailed information, click here):

• Public sector ethics and procedures
• Public procurement
• Public sector finance
• Public reporting, access to information, whistleblower protection
• Public education
• Private sector standards, including accounting and auditing standards

Punitive measures
The Convention also provides for punitive measures. It calls for governments to establish or consider establishing the following behaviour as criminal offences:

• Bribery of national public sector officials
• Bribery of foreign public sector officials
• Bribery of officials of public international organisations
• Illicit enrichment by a public official
• Embezzlement, misappropriation or other diversion of property by a public official
• Trading in influence
• Bribery of private sector decision-makers
• Embezzlement by persons working in private sector entities

Other measures
The UNCAC also contains important provisions relating to:

• International cooperation between law enforcement authorities
• Asset recovery
• Technical assistance and information exchange
• Mechanisms for implementation

The UNCAC provides for a comprehensive international cooperation framework which has the potential to improve mutual law enforcement assistance between authorities. These provisions, which are mandatory, are some of the most important in the Convention. The detailed provisions cover specific aspects of law enforcement cooperation such as extradition, gathering and transferring evidence, assisting investigations and prosecutions. They include requirements that States Parties consider joint investigation, the transfer of criminal proceedings and special investigative techniques. States may not refuse assistance on the basis of bank secrecy and can invoke dual criminality requirements only in limited cases.

A special feature of the UNCAC is that it elaborates an asset recovery framework for the first time on a global basis, covering North and South and establishing the principle that: “The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.” (UNCAC Art. 52) A whole chapter of the Convention is devoted to this subject, with extensive and detailed provisions on the tracing, freezing, confiscation, forfeiture and recovery of assets derived from covered offences.

The Chapter V provisions are groundbreaking, the outcome of tough and extensive negotiations. One set of provisions calls for States Parties to require domestic financial institutions to adopt stringent ‘know your customer’ procedures. This holds particularly with respect to those entrusted with prominent public functions and their family members and close associates’, to whom ‘enhanced scrutiny’ should apply. Other provisions address the recovery of property under individual states’ domestic laws and through international cooperation on confiscation. The aim is to encourage states to ensure that domestic law permits courts to order those who have committed offences established under the Convention to pay compensation or damages to states that have been harmed by those offences. Further measures cover the freezing or seizure of property in a requested state, once a request has been made There is also a positive obligation placed on the requested state to take measures to identify, trace and freeze or seize the proceeds of crime.

In the UNCAC negotiations, asset recovery was identified from the start as a central issue for the Convention. A study prepared as background for the negotiations showed that between 1995 and 2001, Haiti, Iran, Nigeria, Pakistan, the Philippines, Peru and the Ukraine had claimed losses ranging from US$ 500 million to US$ 35 billion due to the corruption of former leaders or senior officials whose money had been channelled out into foreign bank accounts. Other examples could be found in Zaire (now Congo) and China, to name just two. The debates on the asset recovery provisions continued right to the end of the negotiations and turned on the details of a range of provisions, including the know-your-customer provisions and the specific measures to allow States Parties to recover property, in particular in relation to confiscation. The final text resulted from a process of reconciliation of the needs of the countries seeking the return of the assets with the legal and procedural safeguards required by the countries whose assistance is needed.

What does the UNCAC say about assistance to developing countries?

In terms of the overall composition and balance of the Convention the provisions in Chapter VI on technical assistance and information exchange are key. Without the kind of assistance described in this section, many developing countries will have difficulty meeting the requirements of the UNCAC.

Chapter VI includes provisions that call for training programmes for personnel in a range of areas important for prevention and enforcement, as well as collection, exchange and analysis of information on corruption.

Regarding assistance to developing countries, Chapter VI provisions state that: “States Parties shall, according to their capacity, consider affording one another the widest measure of technical assistance, especially for the benefit of developing countries, to help implement their respective plans and programmes to combat corruption, including material support and training…

The chapter also calls for concrete efforts “to enhance financial and material assistance” to support the anti-corruption efforts of developing countries, as well as technical assistance to developing countries and countries in transition to help them implement the Convention.

The UNCAC Chapter VII calls for the first Conference of State Parties to the Convention to be convened within a year after entry into force of the Convention and regularly thereafter. The responsibilities of the Conference include reviewing periodically the implementation of the Convention by States Parties and making recommendations to improve the Convention and its implementation including recommendations about technical assistance needs. It can use relevant information produced by other international and regional mechanisms. The Conference may put into effect supplemental review mechanisms and establish any review body it deems necessary to assess the measures taken by States Parties (and difficulties encountered) to implement the Convention.

In addition, the States Parties are required to provide information about the measures they have taken to implement the Convention.

Based on experience with other anti-corruption Conventions, an effective monitoring mechanism is essential for UNCAC. It remains to be seen what the Conference of State Parties will decide.

• Negotiation: A convention is negotiated by a group of states, generally within an institutional framework.
The negotiation phase has been completed for the UNCAC. However, there may be further negotiation of additions to the Convention or follow-up arrangements.

• Adoption: Once agreement has been reached a convention is placed before an assembly of the states participating in the treaty-making process for a formal act by which they express their consent and the form and content of the proposed treaty are established. Treaties negotiated within an international organisation whose membership corresponds to the potential participation in the treaty will usually be adopted by resolution of a representative organ.
This stage has been completed for the UNCAC which was adopted by the United Nations General Assembly on 31 October 2003.

• Signature: After a Convention is adopted it is then opened for signature by states. This indicates their intent to become Parties.
UNCAC was opened for signature in Mérida, México on 9 December 2003 and signature at the United Nations will continue through 9 December 2005.

• Ratification or accession: To become a Party to a Convention, and thus bound by its requirements when it enters into force, a state must express its consent to be bound by the treaty by ratification or accession to the Convention. The procedures for doing so are laid down under national law and often involve approval by a national legislative body. Accession is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It usually occurs after the treaty has entered into force.
For the UNCAC during the period 2005-2006, this is expected to remain on the agenda in many countries around the world.

• Deposit of instrument of ratification or accession: The final step in the ratification or accession process is for the government of the ratifying country to deposit an instrument of ratification or accession with an institution or office designated as depositary in the treaty. Unless the treaty provides otherwise, this deposit provides evidence of the consent of a state to be bound by the treaty.
For the UNCAC during the period 2005-2006, this is expected to remain on the agenda, given that many countries have not yet ratified the Convention.

• Entry into force: A convention has application to states that have ratified it only once it enters into force, which is typically determined by the provisions of the treaty. With UNCAC entry into force depends on ratification by a minimum number of states. The convention als fixes an amount of time that must elapse between the deposit of the threshold instrument and the actual entry into force. For additional countries ratifying, the convention may also fix an amount of time to elapse before entry into force in those countries.
As noted above, for the UNCAC, the 30th ratification was deposited on 15 September 2005 and the Convention will enter into force 90 days later.

• Implementation into law: After ratifying, States Parties must review whether their national legislation is consistent with Convention requirements and make any necessary changes in law implied by the Convention. In case of self-executing convention provisions, implementation into law is not required.
Considerable work will also be needed on this front worldwide. Part of this process requires, of course, interpretation of Convention standards.

• Implementation into institutional policy and practice, application and enforcement: Apart from changing the legislative framework where necessary, States must review and make changes to the policies and practices of state institutions to bring them into line with Convention requirements. This will include ensuring that legal prohibitions are actually enforced. Governments must provide funding and staffing for organizations administering anti-corruption programs.
Considerable work will also be needed on this front in connection with the UNCAC to translate convention requirements into policy and practice. Part of this process requires, of course, interpretation of Convention standards