Donors and AC conventions

In what way are the conventions useful tools for bilateral donor agencies at headquarters and in the field?

1. Introduction
2. Use of conventions by donors
3. Donor support for convention implementation in developing countries

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Introduction

Anti-corruption Conventions provide useful tools for development assistance agencies concerned about corruption and its impact on development. These Conventions include the UN Convention Against Corruption (UNCAC), the OECD Anti-Bribery Convention and the regional anti-corruption Conventions, notably the African Union, Council of Europe and OAS Conventions and, while not a legally binding instrument, the ADB OECD Anti-Corruption Action Plan for Asia and the Pacific. In some of the areas covered the Conventions overlap and complement each other and can be invoked together in relevant countries. On other particular issues, the Conventions can be used separately according to their coverage.

By setting out an international framework of agreed rules and standards for addressing corruption along with an expression of a high level of political commitment, an anti-corruption Convention can provide guidance and support for anti-corruption work at country level as well as facilitating international cooperation in the control and sanctioning of corruption. Conventions can serve reforming governments, citizens and donors by providing internationally agreed reference points for their work that remain in place from administration to administration. They can create peer pressure on governments, promote collective pressure on the private sector and facilitate citizen pressure for national governments and the private sector to adhere to minimum standards or better.

Even before they are ratified by individual states and come into force, Conventions have a value in agenda-setting and standard-setting, resulting from the inter-governmental process of negotiation that produces them and makes them consensus documents. Their impact becomes all the greater once they have been ratified by a significant number of eligible countries and entered into force. Thus, as a first step, donors should encourage their own governments and those in recipient states to sign and ratify relevant instruments and become parties. In the case of the UNCAC, of the 111 signatories, only four have ratified, so there is much work still to be done on this front.

However, anti-corruption Conventions can only be effective if the states that commit to them by ratification or accession (States Parties) also translate their commitments into actual implementation and enforcement at the national level. This too should be encouraged and promoted by the donor community, both at home and abroad.

Moreover, experience demonstrates that in order to hold governments to their commitments, it is necessary to have an institutionalised system of follow up, including monitoring. Once Conventions have entered into force, donor support for monitoring mechanisms is also essential. These include international or regional peer monitoring mechanisms, as well as national civil society monitoring efforts. Without strong monitoring, Conventions are unlikely to be effective.

2. Use of conventions by donors

The following sections outline specific ways in which donors can make use of anti-corruption Conventions.

Standards for domestic institutions
Donor agencies can use the UNCAC (especially once it enters into force), the OECD Convention and relevant regional Conventions to which the donor country is a party to check the performance and raise the standards of other institutions in their own country. This can give them far greater credibility in asking recipient countries to take effective action against corruption.

More specifically, at headquarters donors can try to ensure that the donor country's domestic institutions are fulfilling their obligations under UNCAC, OECD Convention and under other relevant Conventions in key areas that may affect developing country prevention and law enforcement efforts. These areas include

• Enforcement of domestic legislation prohibiting foreign bribery, by investigation and prosecution of such cases involving companies in donor country; donor agencies in the field can also warn international companies about the consequences of foreign bribery and set up reporting channels
• Mutual legal assistance to foreign government requesting such assistance for their anti-corruption enforcement efforts
• Prevention and domestic prosecution of corruption-related money laundering
• Assistance to other states engaged in asset recovery by countries whose coffers have been plundered
• Prevention of corruption involving the private sector, including setting and enforcing accounting and auditing standards

Further, at headquarters donor agencies can also make efforts to ensure that domestic institutions meet Convention standards with regard to addressing domestic corruption, whether through prevention or enforcement. A donor agency is ill-placed to hold recipient countries to Convention standards if the donor country doesn't meet them itself.

Standards for donor agencies' own work

At the same time, donor agencies can use the UNCAC standards and, where relevant, standards in regional and specialist instruments, with reference to their own agencies and their own work. They may especially want to take into account the provisions in the UNCAC chapter on preventive measures. These include provisions concerning the hiring and retention of public officials, codes of conduct for public officials, public procurement and management of public finances, public reporting and participation of society. The OAS Convention also covers standards of conduct for public functions, systems of government hiring and procurement, government control systems that deter corruption, systems for whistleblower protection and deterrents to the bribery of domestic and foreign officials. There are also relevant provisions in the Asia Pacific Action Plan. (The AU Convention contains such provisions but this is not relevant for the donor community when examining its own practices.)

Standards and framework of support for recipient countries

The UNCAC and the regional Conventions contain standards regarding both corruption prevention and criminalisation (AU and OAS Convention and Asia Pacific Action Plan) or just criminalisation (Council of Europe Criminal Law Convention) negotiated and agreed among a large group of countries, including recipient developing countries. The UNCAC and the Council of Europe Civil Law Convention also provide for civil remedies.

Donors may hold recipient countries to these standards with the double legitimacy derived from the fact that (i) the recipient country was involved in the development of the standards and agreed to them; and (ii) the standards in question are agreed among many nations. In the case of the UNCAC, they are global standards agreed among the vast majority of nations. In the case of the regional Conventions, they are regional standards agreed following negotiations in the recipient country's region.

Donors can use the provisions of the UNCAC and regional Conventions on prevention and criminalisation as a basis for supporting recipient countries with regard to anti-corruption measures in programmes and institutions supported by development assistance. The topics covered by Conventions include:

• Public procurement
• Public sector hiring and promotion
• Public sector ethics and procedures, including codes of conduct for public officials and measures to prevent conflicts of interest
• Public reporting and access to information
• Private sector standards, including codes of conduct and accounting and auditing standards
• Criminalisation of bribery of domestic and foreign public officials
• Prevention and criminalisation of corruption-related money laundering
• Civil law remedies for those harmed by corruption

Donors can also use Conventions as a framework for assisting developing countries in improving their efforts in the areas of:

• International cooperation and mutual legal assistance
• Asset recovery

Development assistance agencies should also take into account the role that institutions in developing countries can play with regard to enforcement of foreign bribery prohibitions by donor countries themselves. Donors can support efforts to enforce Convention prohibitions on foreign bribery by providing training in developing countries about the OECD Convention, as well as about the UNCAC (and where relevant the Council of Europe and OAS Conventions) in developing countries, particularly training for law enforcement officials, but also for business and civil society organisations and the media. Further, with the assistance of headquarters, they can set up reporting channels to enable those in developing countries to report alleged foreign bribery in their country. Using these channels, donors can ensure that relevant information reaches law enforcement officials in OECD countries.

UNCAC Framework

Within the UNCAC, there is provision for a Conference of the States Parties to agree upon activities, procedures and methods of work to achieve the objectives of the Convention. These include mobilisation of voluntary contributions. Thus the Convention provides the possibility of an international institutional framework for assessing needs and coordinating development assistance in the field of anti-corruption. Other Conventions have equivalent mechanisms and the Asia Pacific Action Plan has an Advisory Group of donors and other stakeholders to work with governments.

The UNCAC sets out an agreed framework for providing support to developing countries to enhance their anti-corruption efforts. It specifically includes a chapter on technical assistance and information exchange. This covers a range of issues, including (i) building capacity in the development and planning of strategic anti-corruption policy, (ii) training competent authorities in the preparation of requests for mutual legal assistance, and (iii) activities relating to prevention of transfer of proceeds of offences.

Framework for assessing performance

Donor agencies can make use of the frameworks provided by the various Conventions for reviewing country progress and determining focal areas for anti-corruption programmes in both donor and recipient countries, drawing on the reports prepared. But review mechanisms need to be adequately resourced. The UNCAC, OECD Convention, African Union Convention and Council of Europe Conventions and the Asia Pacific Action Plan all provide for follow-up mechanisms. In the case of the OECD, OAS and Council of Europe Conventions there are monitoring systems already in place and functioning. The Asia Pacific Action Plan successfully introduced a self-assessment process in 2003 which is likely to be made more rigorous and broadened in its scope. The UNCAC and AU Convention systems still require elaboration. Donor support is needed to ensure that monitoring functions well under all the Conventions.

The framework provided by these actual or expected follow-up mechanisms can assist donors in monitoring the progress on anti-corruption work at home and in recipient countries. The OECD Convention's peer review process provides monitoring of donor country performance with regard to the supply side of corruption. The GRECO review process for the Council of Europe Convention and the OAS Convention review processes look at a range of issues relating to both the supply and demand side of corruption. The African Union process, once established, will most likely also look at all aspects covered by the Convention, both supply and demand side.

Still unclear is how much follow-up there will be under the UNCAC and of what nature. The aforementioned UNCAC provision for a Conference of the States Parties (the states that have ratified or acceded to the Convention and are legally bound by it) also calls for them to agree upon activities, procedures and methods of work in order to achieve periodic review of the implementation of the Convention. It specifically requires States Party to provide the Conference with information on its programmes, plans and practices, as well as on legislative and administrative measures to implement the Convention. It provides for the Conference of the States Parties to examine the most effective way of receiving and acting upon information.

In principle, the UNCAC offers the opportunity for consolidated reporting and review of country progress. Moreover, donor countries are held accountable in the same way as recipient countries. However, for this kind of review to occur effectively, it will be necessary to develop procedures, to be decided on by the Conference of States Parties. The effectiveness of the UNCAC will turn on whether the States Parties succeed in developing an effective implementation mechanism. Donor governments have a role to play in the negotiation, establishment and funding of such an implementation mechanism. Further, as already mentioned above, donor assistance may also be needed by developing countries in order to enable them to participate in monitoring.

3. Donor support for convention implementation in developing countries

At country level, there are various ways that donors can provide support to developing countries to promote Convention implementation. Donors should assist developing countries in preparing for and following up on ratification and implementation by providing support for the following activities:

• Awareness-raising; promotion of signing and ratification: Donors, government and stakeholders need to raise awareness about the importance of Conventions among parliamentarians, affected members of the executive branch, private sector and civil society. Donors can provide information materials, support the organisation of workshops on the Conventions or particular aspects, and discuss the Conventions in their public appearances and private meetings.
• Integration into national legislation: Government and stakeholders need to assess legislative changes required to comply with Convention standards. Donors can provide support for local legal expertise.
• Institutional reform: Government and stakeholders need to assess the kinds of institutional reform needed to comply with Convention standards, including assessment of the resources needed. Donors can provide financial and technical assistance for this.
• Monitoring processes: Ideally Conventions should have an effective intergovernmental monitoring process. Not all do, but efforts are under way to that end. Participating in such monitoring requires expertise and resources which developing countries may not have and donors can assist in providing these. Further, monitoring by civil society (including their inputs to intergovernmental reviews) is important for keeping their governments to their commitments and assuring an independent point of view in the review processes.

The UNCAC specifically calls on States Parties to the extent possible to enhance financial and material assistance to support the efforts of developing countries to prevent and fight corruption effectively and to help them implement the Convention successfully.