The UN Convention Against Corruption sets new standards and marks a breakthrough to facilitate the return of stolen assets, but its success requires political will and a commitment to monitor implementation
The UN Convention Against Corruption, on which talks concluded today, "will provide a comprehensive set of standards and measures to promote international co-operation and domestic efforts in the fight and prevention of corruption," said Peter Rooke, Transparency International (TI) Advisory Council member and an observer at the negotiations. "Political will is essential to the Convention's success, in particular to the goal of achieving effective corruption prevention and enforcement." TI, the leading international non-governmental organisation devoted to fighting corruption, is fully committed to supporting this process at a global level and through TI's national chapters around the world.
Governments will sign the Convention in Merida, Mexico, at a ceremony on 9-11 December 2003. In addition to providing for measures to combat corruption in both private and public sectors, the Convention is groundbreaking in introducing into an international legal instrument the concept, description and processes for international co-operation in the recovery of stolen assets. The Convention also establishes the right of persons who have suffered damage from corruption to initiate legal proceedings against responsible parties.
"The important task ahead is to urge states to ratify the Convention as soon as possible so it will be an active, legally binding instrument for States," said Rooke. The seventh session included agreement to lower the threshold number of ratifications from 40 to 30 countries. "The UN Transnational Organised Crime Convention required 40 ratifications, and came into force only on 29 September 2003, almost three years following the conclusion of its negotiations," said Rooke. "The lower number of 30 provides greater chance that the UN Convention Against Corruption will come into effect more quickly. The impact the Convention has in combating corruption will depend, however, on its effective implementation and application by a large number of States."
"As the first global anti-corruption instrument, the Convention gives a unique opportunity to create public awareness and commitment to curbing corruption," said Rooke. "This includes awareness of the degrees of corruption, that there are steps which can be taken to curb it and that the Convention is evidence of global solidarity and commitment." TI therefore supports very strongly the Committee's inclusion, in its draft UN General Assembly resolution to adopt the Convention, of a decision to designate December 9th as the annual International Anti-Corruption Day.
At the seventh and final session from 29 September till 1 October 2003, government delegations debated a highly controversial article regarding the need for dual criminality in mutual legal assistance cases. Dual criminality implies that in order for a state to give mutual legal assistance to another state upon request (e.g. to help out with investigations, prosecution and judicial proceedings), both states must have similar legislation regarding the criminal offences for which the assistance is sought.
"The agreed text provides that, even when states do not have dual criminality, they can still use the Convention as the basis for providing legal assistance in many cases," explained Peter Rooke. "This breakthrough provision gives states the ability to refuse assistance when dual criminality is not satisfied only when the assistance involves coercive action or the assistance is of a trivial nature".
Over the three years of negotiations, the Convention did suffer some setbacks - an important article which called for legislative and policy changes to make the funding of political parties transparent and accountable was replaced by a weak optional provision. A provision calling on States to criminalise bribery in the private sector was made non-mandatory. In addition, the monitoring of the Convention will be left to the discretion of the Conference of States Parties which assembles within one year after the Convention comes into force. "Putting an effective and constructive monitoring mechanism in place may take some time," said Rooke, "but TI welcomes the possibility to contribute to this process."
For TI's recommendations to the Seventh Session and earlier sessions of the Ad Hoc Committee for the Negotiation of a UN Convention Against Corruption, see: www.transparency.org/
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