Tuesday, 29 January 2019

Critically discuss, with reference to the international conventions and domestic laws addressed in class or in the assigned readings, how the United Nations Convention Against Corruption has improved on previous approaches to the regulation of international corruption, and how might it nonetheless still itself be improved.


There have been many domestic laws and international conventions which have had the objective of regulating international corruption. Many have met with limited success and have suffered from similar shortcomings. The United Nations brought into force the Convention against Corruption in 2005 with the aim of addressing these shortcomings. The UNCAC’s new approach is overall a step in the right direction, but there is still much room for improvement in this area.
Corruption was defined by the IMF in 2011 as the abuse of public authority or trust for private benefit. In the context of international trade and business, corruption often takes the form of payments by corporations to persons in authority in order that they exercise their discretion in their favour.
Regulation initially had a narrow definition of corruption and focused primarily on bribery, and the regulation was very soft and lacked bite. An example of a domestic law of this type is the USA’s Foreign Corrupt Practice Act which came into force in 1977; this law had a very narrow approach as it solely prohibits bribery of foreign public officials, and it expressly permitted ‘facilitating’ payments which do not involve the corruption of a discretion per se, but merely speed up a corporation receiving what it is entitled to, and it permitted payments which are legal in the country in which they are made. An example of an international convention is the United Nations Convention Against Transnational Organized Crime which came into force in 2003. Although this convention prohibited passive as well as active bribery, the scope of the Convention is still limited to bribery and fails to address other forms of corruption. Moreover, the only enforcement mechanism is self-reporting by member states; there is no external monitoring or sanctions on member states for breaching the Convention.
What the UNCAC brought to the regulation of international corruption is a convention which addresses a wide range of corrupt practices, is ratified by a large number of countries, and has a coordinated, deeply penetrating application.
UNCAC’s definition of corruption is not limited to bribery of foreign public officials, but addresses bribery of domestic public officials, bribery of officials of public international organisations and bribery of private individuals.
UNCAC is ratified by 140 member states and requires them to provide mutual assistance in combating corruption. Unlike its predecessors, it puts specific obligations on member states such as to allow damages against victims of corruption and to recover and return stolen assets. Another aspect of the UNCAC which contributes to its deep penetration is that it aims to mobilise societies at large against corruption, which can be seen in the establishment of the UNCAC coalition, a network of over 300 civil society organisations.
Despite the promising new approach of the UNCAC, its implementation has revealed some areas for improvement. One such area is the weakness of its monitoring system; in January 2008, only 52% of states had completed the self-assessment. Also, many developing countries have struggled to fulfil their obligations under UNCAC due to a lack of policy guidance and technical assistance.

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