Anti-corruption conventions and treaties
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Contents:
- United Nations
- OECD
- European Union
- Council of Europe
- Organization of American States
- African Union
- Other international agreements for action against money laundering
[U4 special pages on Anti-Corruption Conventions]
United Nations
United Nations
The
United Nations convention against corruption
The UN Convention was adopted by the General Assembly by resolution
58/4 of 31 October 2003 after two years of negotiations. It was open
for signatures in December 2003 and has been signed by an overwhelming
number of States. This convention is global in both its approach to
the subject and in its geographical application. Read about the negotionations
in the United Nations for the Convention Against Corruption on
the pages of the UN
Office on Drugs and Crime.
While there have been many developments in international law, the picture remains incomplete. Legal instruments that are binding in nature are not universal or global in their application, and efforts of a global nature are thus far not legally binding. Some substantive issues, such as those arising from transnational private-sector corruption and the repatriation of the proceeds of corruption, and particularly proceeds of "grand corruption" cases, have yet to be addressed. During 1999-2001 negotiations began to develop a binding international legal instrument which would be global in both its approach to the subject-matter and in its geographical application. The actual negotiations took place from January 2002 - October 2003. They produced not only a specified instrument, but also a valuable forum in which all Member States of the United Nations could assemble to discuss corruption issues, to develop effective measures against corruption, and to build broad international consensus in support of such measures.
United Nations
The
United Nations Declaration against Corruption and Bribery in International
Commercial Transactions
In December 1996, the General Assembly adopted the United Nations
Declaration against Corruption and Bribery in International Commercial
Transactions (Resolution 51/191).
The Declaration deals with both private and public sectors. It calls
for the enactment and enforcement of laws prohibiting bribery in international
transactions; and laws criminalising the bribery of foreign public
officials; laws ensuring that bribes are not tax deductible. It also
calls for international cooperation in areas such as investigation,
prosecution and extradition and for countries to ensure that bank
secrecy is not an obstacle to such cooperation. It proposes a partial
definition of bribery which includes both active and passive bribery,
but which is limited to cases involving "… any public official
or elected representative…", and which is limited to breaches
of a public duty respecting an international commercial transaction.
Neither "public official" nor "international commercial
transaction" is defined. The Declaration also calls for the development
accounting standards and practices to improve transparency and business
codes, standards or best practices which prohibit "…corruption,
bribery and related business practices" in international commercial
transactions.
The text is in the nature of a political commitment and not a legal
obligation, with actions to be taken through institutions at the national
regional and international level, and subject to each State's constitution,
fundamental legal principles, national laws and procedures.
United Nations
UN
International Code of Conduct for Public Officials
In December 1996, the General Assembly adopted the International Code
of Conduct for Public Officials (resolution 51/59, annex)
The International Code of Conduct for Public Officials has been adopted
as a tool to guide Member States in their efforts against corruption
in the public sector through a set of basic recommendations that national
public officials should follow in the performance of their duties.
The Code deals with the following aspects: (a) the general principles
that should guide public officials in the performance of their duties
(i.e. loyalty, integrity, efficiency, effectiveness, fairness and
impartiality); (b) conflict of interest and disqualification; (c)
disclosure of personal assets by public officials, as well as, if
possible, by their spouses and/or dependants; (d) acceptance of gifts
or other favours; (e) the handling of confidential information; and
(f) the political activity of public officials, which, according to
the Code, shall not be such as to impair public confidence in the
impartial performance of the functions and duties of the public official.
United Nations
United
Nations Manual on Anti-Corruption Policy
The Centre for International Crime Prevention (CICP) has prepared
this United Nations Manual on Anti-Corruption Policy, in order to
serve as a policy guide for governments in their anti-corruption efforts.
The Manual is supplemented by and should be read in conjunction with
the United Nations Anti-Corruption Tool Kit, its operational counterpart.
Despite differences between legal systems, international cooperation
is crucial and will be enhanced by the elaboration of a new United
Nations Anti-Corruption Convention.
Since the publication of this Manual in 1992 by the CICP, in cooperation
with the US Department of Justice, the world has witnessed an unprecedented
increase in awareness raising by governments and international agencies
regarding the extent and the negative effects of corruption. In recent
years international organizations, governments, and the private sector
have come to view corruption as a serious obstacle to democratic government,
quality growth, and national and international stability. There is
now an increased interest in, and need for, anti-corruption policies
and measures that have proven effective.
United Nations
Plan
of Action for the implementation of the Vienna Declaration on Crime
and Justice
Meeting the Challenges of the Twenty-first Century (Corruption
issues).
The Vienna Declaration on Crime and Justice, the political declaration
of the Tenth United Nations Congress on Crime Prevention and Criminal
Justice, dealt with a full range of the major crime issues confronting
the Congress, including corruption. Paragraph 16 of the Vienna Declaration
calls for enhanced international action against corruption, building
on the Code of Conduct and Declaration against corruption and bribery,
as well as regional instruments. On endorsing the Vienna Declaration,
the General Assembly requested the Secretary General to prepare plans
of action for the implementation and follow up of the commitments
in the Declaration.
The Plan of Action is divided into national and international actions.
In addition to the Plan of Action against corruption, the text produced
by the Commission also contains Plans of Action against transnational
organized crime and money laundering. The first calls for ratification
and implementation of the United Nations Convention, which as noted
above, contains a series of provisions dealing with, or relevant to
the fight against corruption. The second sets out a series of national
actions, including national laws criminalizing money-laundering in
all its aspects; the implementation of effective regulatory, administrative
and investigative provisions; and support for international initiatives
in this area. It does not deal with the question of the repatriation
of proceeds recovered in other countries, but this is discussed in
relation to corruption by paragraph 8, subparagraph (f) of the Plan
of Action against Corruption.
United Nations
Convention
against transnational organized crime (TOC)
The December
2000 Palermo Convention, not yet in force, incorporates concepts
on corruption agreed, for the first time, at the general universal
level.
Among the mandatory offences, are envisaged: promise,
offer, give, solicit or accept; any undue advantage to/by a public
official; to act or refrain from acting; any matter relating to official's
public duties; participation as an accomplice, and as optional offences:
corrupting foreign or international public servants and other forms
of corruption are included in art. 8.
On the issue of corruption measures, art. 9 contemplates the enacting
of legislative or other measures to promote integrity; to prevent,
detect and punish corruption of public officials; to ensure effective
action by officials and to provide anti-corruption authorities with
sufficient independence to deter undue influence.
Organization for Economic Cooperation and Development
Organization for Economic Cooperation and Development
The
OECD convention against bribery
Full title: OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions.
Concluded on 21 November 1997, this binding legal instrument and
came into force following ratification by five of the ten OECD countries
with the largest economies, on 15 February 1999. The OECD Convention
is relatively narrow and specific in its scope. Its sole focus is
the use of domestic law to criminalise the bribery of foreign public
officials. It applies to both active and passive bribery, but does
not apply to forms of corruption other than bribery, bribery which
is purely domestic, or bribery in which the direct, indirect or intended
recipient of the benefit is not a public official. It also does not
include cases where the bribe was paid for purposes unrelated to the
conduct of international business and the gaining or retaining of
some undue advantage in such business.
The obligation to criminalise includes any case where the offender
offers, promises or gives "…any undue pecuniary or other
advantage …to a foreign public official…" to induce
the recipient or another person to act or refrain from acting in relation
to a public duty, if the purpose was to obtain or retain some business
or improper advantage in the conduct of international business. States
Parties are required to ensure that incitement, aiding and abetting
or authorizing bribery are also criminalised and that the offences
apply to corporations and other legal persons.
Punishments must be "effective, proportionate and dissuasive",
and of sufficient seriousness to trigger the application of domestic
laws governing mutual legal assistance and extradition. Bribing foreign
public officials must also trigger national money laundering laws
to the same extent as would the equivalent bribery of a domestic official.
Since the OECD Convention came into force, the OECD Working Group
on Bribery in International Business Transactions has carried out
a rigorous process of assessing the status of implementation and compliance
with its terms through "self-assesment" and "peer review"
(mutual evaluation) systems.
Implementation of the Convention is ongoing. A
progress report is available from the OECD. You can also read
Transparency International's 'Monitoring
the OECD convention.
European Union
European Union
Joint
Action of 22 December 1998 on corruption in the private sector
The Joint Action of 22 December 1998 incorporates many similar
provisions to the proceeding European instruments, but there is one
fundamental difference. Here the focus is on corruption in the private
sector. The obligation is to criminalise both active and passive corruption
conducted "in the course of business activities", which
would include cases where neither the payor nor the recipient of a
bribe was connected in any way with public administration, as well
as cases where the "business activities" involved business
with government.
The underlying policy is to use the criminal law of Member States
to combat private sector practices on the basis that these distort
free competition within the common market, thereby raising the possibility
of economic damage to others not involved in the activity. The text
is drafted in binding legal terms, and Member States are required
to bring forward proposals for implementation within two years of
its entry into force.
European Union
Convention
of the European Union on the fight against corruption involving officials
of the European Communities or officials of Member States
This Convention incorporates essentially the same terms as the 1995
Convention on the protection of financial interests (below), but only
deals with conduct on the part of officials of the European Community
and its Member States. The conduct to which it applies is essentially
bribery and similar offences, which States parties are required to
criminalise. It does not deal with fraud, money laundering or other
corruption-related offences.
European Union
Convention
of the European Union on the protection of its financial interests
and protocols thereto
The Convention (1995) and its two Protocols (1996 and 1997) represent
an attempt on the part of the European Union to address forms of malfeasance
which are harmful to its own financial interests. They are legally
binding and address corruption and other financial or economic crimes
as well as related conduct, but only insofar as the conduct involved
affects the interests of the E.U. itself. The Convention deals with
a list of conduct designated as "fraud affecting the European
Communities' financial interests".
The first Protocol deals with active and passive corruption, the second
with money laundering and the confiscation of the proceeds of fraud
and corruption as set out in the previous instruments. The forms of
active and passive corruption dealt with in the first Protocol generally
consist of bribery and similar conduct, in which some promise, benefit
or advantage is solicited, offered or exchanged in return for undue
influence on the exercise of a public duty. The forms of fraud set
out in the Convention itself cover other areas of corruption, such
as the submission of false information to a public authority to induce
it to pay funds or transfer property it would not otherwise have done.
Council of Europe
Council of Europe
The
twenty guiding principles for the fight against corruption (1997)
The Council of Europe Committee of Ministers adopted a resolution
setting out "Twenty Guiding Principles for the Fight against
Corruption in November of 1997. The principles are multidisciplinary,
covering the use of criminal and civil law measures, civil prevention,
administrative reforms, transparency measures, and research, and are
directed at encouraging individual countries to consult one another
and coordinate national measures as a further precaution against transnational
corruption problems. Attention is also drawn to the links between
corruption and other forms of crime, particularly money-laundering
and organised crime.
Council of Europe
The
Criminal Law Convention against corruption
The Convention is drafted as a binding legal instrument and applies
to a broad range of occupations and circumstances, but is relatively
narrow in the range of actions or conduct that States Parties are
required to criminalise. It contains provisions criminalising a list
of specific forms of corruption, and extending to both active and
passive forms of corruption, and to both private-sector and public
sector cases. The Convention also deals with a range of transnational
cases: bribery of foreign public officials and members of foreign
public assemblies is expressly included, and offences established
pursuant to the private-sector criminalisation provisions would generally
apply in transnational cases in any State Party where a sufficient
portion of the offence to trigger domestic jurisdictional rules had
taken place.
The majority of offences established are limited to bribery, which
the instrument does not define. Trading in influence and laundering
the proceeds of corruption must also be criminalised, but the instrument
does not deal with any of the other forms of corruption, such as extortion,
embezzlement, nepotism, or insider trading, and it does not seek to
define or criminalise corruption in general.
In addition to European countries, it is also open for signature and
ratification by other, nonmember States that participated in its negotiation.
Other States can also join by accession once the instrument is in
force, provided certain preconditions.
Council of Europe
The
Civil Law Convention against corruption
The Civil Law Convention on Corruption of the Council of Europe
is the first attempt to define common international rules for civil
litigation in corruption cases. Where the Criminal Law Convention
seeks to control corruption by ensuring that offences and punishments
are in place, the Civil Law Convention requires States Parties to
ensure that those affected by corruption can sue the perpetrators
civilly, effectively drawing the victims of corruption into the Council's
anti-corruption strategy.
As with the Criminal Law Convention, the Civil Law Convention is drafted
as a binding legal instrument. Civil law provisions must be enacted
which ensure that anyone who has suffered damage resulting from corruption
can recover "…material damage, loss of profits and non-pecuniary
loss." Damages can be recovered against anyone who has committed
a corrupt act, authorised someone else to do so, or failed to take
reasonable steps to prevent the act, including the State itself, provided
that a causal link between the act and the damages claimed can be
proved. Where appropriate, courts also have the power to declare contractual
obligations resulting from corruption to be null and void, where the
consent of any party to the contract has been "undermined"
by corruption.
The Civil Law Convention is narrower that its criminal law counterpart
in the scope forms of corruption to which it applies, extending only
to bribery and similar acts, but applies to such acts in both private-
and public-sector circumstances. It is not in force.
Organization of American States
Organization of American States
The
Inter-American convention against corruption (IACC)
The IACC is the first international convention against corruption
ever adopted. The instrument has been in force since March 6, 1997,
having been ratified by 22 OAS countries, and is broader in scope
than the European and OECD instruments, which focus primarily on bribery
and its variations.
The IACC provisions can be broadly classified in three groups:
- Preventive Measures: Article III bounds the State Parties to adopt, inter alia, codes of conduct, conflict of interests rules, financial disclosure systems for public officials, public procurement norms, State encouragement of civil society initiatives, the creation of Anticorruption Agencies;
- Criminal Offences: In addition to passive and active bribery, the Convention also applies to any acts or omissions done by the person or official for the purpose of illicitly obtaining any benefits; and the fraudulent use or concealment of property derived from corruption. States Parties are required to adopt these acts or omissions, as well as transnational bribery and illicit enrichment as domestic offences.
- Mutual Legal Assistance: The Convention foresees that the State Parties will foster among them cooperation in technical assistance matters, as well as in extradition, bank secrecy and asset recovery issues.
African Union
African Union
Convention on preventing
and combating corruption
The AU Convention on Preventing and Combating Corruption was adopted by
the heads of state at the African Union Summit to held in Maputo in July 2003.
By early 2004, 21 countries had signed the convention. Read the list
of signatories.
The aim of this Convention is to facilitate international co-operation
and mutual assistance in investigating crime and tracking down, seizing
and confiscating the proceeds thereof. The Convention is intended
to assist States in attaining a similar degree of efficiency even
in the absence of full legislative harmony.
Parties undertake in particular:
- to criminalise the laundering of the proceeds of crime;
- to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).
For the purposes of international co-operation, the Convention provides for:
- forms of investigative assistance (for example, assistance in procuring evidence, transfer of information to another State without a request, adoption of common investigative techniques, lifting of bank secrecy etc.);
- provisional measures: freezing of bank accounts, seizure of property to prevent its removal;
- measures to confiscate the proceeds of crime: enforcement by the requested State of a confiscation order made abroad, institution by the requested State, of domestic proceedings leading to confiscation at the request of another State.
Other international action against money laundering
European Union
EU
Directive 91/308/EEC 10 June 1991
Through this directive, the Council of the European Communities required
that its Member States pass into force laws, regulations and administrative
decisions necessary to comply with several measures designed to prevent
the use of credit and financial institutions for the purpose of money
laundering. (See also document)
European Union
EU
Directive 2001/ on prevention of the use of the financial system for
the purpose of money laundering
Read the directive as full
text document. The adoption of the Directive updated and extended
the 1991 anti-money laundering Directive.
The main changes to the 1991 Directive are a widening of the prohibition
of money laundering to embrace not only drugs trafficking but all
organised crime, and an extension of the obligations of the Directive
to certain non-financial activities and professions. A cooperation
between national authorities and the Commission in case of illegal
activities against the financial interests of the European Communities
is also required. Finally, the opportunity is being taken to clarify
certain aspects of the 1991 text.
As an important part of the acquis communautaire the EU anti-money
laundering rules will also represent the standard set for the applicant
countries and other countries with which the Union is working in this
area.
Article
2 of the Directive provides that money laundering shall be "prohibited"
in all Member States. The current Directive requires Member States
to implement measures to counter the laundering of the proceeds of
drug trafficking, but because the Directive is based on the EU Treaty,
it cannot oblige Member States to amend their criminal legislation.
In practice, however, all Member States have made laundering of the
proceeds of drug trafficking a criminal offence and most have extended
the definition of money laundering to cover laundering the proceeds
of many other serious crimes.
Financial Action Task Force on Money Laundering (FATF)
The
Forty Recommendations 1990
FATF is an inter-governmental body whose purpose is to develop and
promote policies to combat money laundering. These recommendations
set out the basic framework for anti-money laundering efforts and
are designed for universal application. They cover the criminal justice
system and law enforcement, the financial system and its regulation,
and international co-operation. At present there is an ongoing exercise
on the Revision of the 40 Recommendations.
FATF started in 2000 the 'Non Cooperative Countries and Territories' exercise, which includes the elaboration of "black lists" of jurisdictions that are weak on their anti-money laundering policies. FATF has fostered the creation of FATF-style bodies in different regions (Caribbean, South America, Asia-Pacific, Central Europe, Africa).
International Chamber of Commerce
Guide to the
Prevention of Money Laundering, 1998
This guide is designed to assist those who are unfamiliar with money
laundering legislation and those who live in countries where there
is no legislation. It is intended primarily for banks, but is also
applicable to other financial institutions. It provides an overview
of money laundering, its definition, risks and techniques. The guide
then sets out a framework for self-protection, based on best practice
procedures, knowledge of business clients and counterparts, and self-analysis
using the Compliance Chain Analysis (CCA) methodology. The guide also
contains case studies that illustrate the issues and procedures raised
in the text. The appendices provide further details from the main
body of the text.
Transparency International Latin America and the Caribbean
(TILAC)
Transparency
International's conventions website for the Americas
A civil society web site dedicated solely to international anti-corruption
conventions in the Americas.
United Nations
Common
Law Model Law on Money Laundering and Proceeds of Crime (together
with commentary)
United Nations
Civil Law Model Law on Laundering, Confiscation and International
Cooperation in relation to the Proceeds of Crime, 1999
These model laws, which serve as working tools for Member States,
are in a continuous process of upgrading, encompassing new material
such as the provisions of the proposed United Nations Convention against
Transnational Organized Crime, which was submitted for official signature
in December 2000. The laws are intended to be adjusted to the particularities
of national legal systems and administrative cultures.
UN model laws enable governments to translate treaty obligations into
the detailed powers and operational frameworks necessary to apply
them in practice. To the extent permitted by the international drug
conventions, individual states may need to make adjustments to the
text to more accurately reflect the fundamental principles of their
legal systems and constitutions.
United Nations
Convention
against Transnational Oragnized Crime (TOC)
The Palermo
Convention of December 2000, not yet in force, encompasses in
its arts. 6 and 7 specific elements and concepts agreed for the first
time at the multilateral universal level on the subject of money laundering.
Among these concepts, it's possible to highlight, money laundering
offences (conversion or transfer to conceal criminal origins; concealment
of nature, source, location, disposition, movement or ownership; knowing
acquisition of proceeds, the recourse to 'serious crimes', etc) and
money laundering measures (comprehensive regulatory regime for banks
and financial institutions, identify customers, keep records, identify
suspicious transactions, cooperation with other States -FIUs and monitor
cross-border movement of cash, etc).
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Selected Literature |
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FAQ's |
| MEASURING CORRUPTION |
 UNDP (2008)
Uses and Abuses of Governance Indicators This study (available for purchase from OECD) seeks to clarify current trends in the use and misuse of governance indicators as these indicators are applied to developing countries. It includes an in-depth analysis of the most carefully constructed and widely-used governance indicators, those produced by Daniel Kaufmann and his team at the World Bank Institute. The paper argues that composite perceptions-based indicators lack transparency and comparability over time, suffer from selection bias, and are not weel suited to help developing countries identify how effectively to improve the quality of local governance. Fact-based indicators are not necessarily more objective. The authors argue that governance indicators should be based on publicly-available data sets derived from facts, experiences and/or perceptions of diverse, clearly-defined population groups both within and outside the country in question This paper assesses corruption levels and trends among countries in the transition countries of Eastern Europe and Central Asia. One interesting finding was the lack of correlation between corruption in public procurement reported by firms and broader, perception-based indicators. In addition to an analysis of corruption measurement in the region, the author usefully includes a general "primer on corruption indicators" which outlines definitional and methodological differences between data sources. Composite indices are conceptually less precise than single sources. A major problems is that many give more weight to sources that correlate highly with each other. In the case of expert surveys, high correlation is a natural result of the fact that "experts" read the same analyses as well as each others' rankings. The author argues for broader use of firm, household and public official surveys to identify more specific corruption problems for programming purposes. |