19 October 2015.
What positive things have come out of sessions of the Conference of States Parties (COSP) in the past and what more can we expect?
In its short history, the COSP has built the infrastructure for the full and effective implementation of the Convention. At its third session, it established the Implementation Review Mechanism (Resolution 3/1). At its fourth session it instituted the briefings for NGOs during the Implementation Review Group meetings (Resolution 4/6). In other actions, the COSP adopted resolutions focussing on the prevention of corruption and support for asset recovery. All this work has significantly advanced the implementation of the Convention, as we have been able to confirm through more than 110 completed executive summaries, more than 140 forms of direct dialogue (either country visits or joint meetings), and more than 160 self-assessment checklists (SACL) received – with yet more to come!
At the upcoming sixth session, the Conference is expected to launch the 2nd cycle of the Implementation Review Mechanism. The Conference is also expected to make key decisions on prevention, asset recovery and public-private partnerships to prevent and combat corruption.
Furthermore, a key thematic publication, The State of Implementation of UNCAC, with an in-depth analysis of some 70 completed country reviews, will be launched (document symbol CAC/COSP/2015/5).
The UNCAC review mechanism will be a central topic at the upcoming COSP. In what ways has the review process worked? In what ways has it failed? What would you change? What are the most difficult issues to resolve at the upcoming COSP regarding the 2nd cycle?
Through the UNCAC Implementation Review Mechanism (IRM) States parties have been able to demonstrate their commitment towards fighting corruption and implementing the necessary legal and institutional reforms to align their systems with the requirements of the Convention. The country reviews have also helped States parties identify areas where national capacities are lacking and plan for future action. One of the most impressive aspects of the IRM, which is difficult to capture in formal documents and reports, is the peer learning aspect. We have often seen how reviewers and officials of States under review freely exchange experiences and ideas and even continue to do so well past the conclusion of the country review. The fact that all States parties, including least developed countries, participate on an equal footing has been critical in this respect. Of the 125 reviews that we plan to have concluded by the time of the sixth session of the COSP, every single one contains recommendations for improvement, regardless of the state of development of the country concerned. In line with the spirit of the Mechanism, all the reviews also highlight good practices, injecting optimism and encouragement towards the achievement of the common goal of fighting corruption.
Another important aspect is the increased involvement and participation of civil society and non-governmental organizations (NGOs), academia and the private sector during and after the reviews.
We are aware of the perception that the reviews only touch upon legal compliance, and that many countries would like to see more information on actual implementation of the individual provisions. However, this perception does not reflect reality. The Mechanism has sought to enhance the focus on effective implementation of the UNCAC provisions that are currently under review by looking at case law and statistics.
What we would like to change during the second review cycle would be to ensure a better response to the needs for technical assistance identified by countries, especially developing countries, through the reviews. The challenges ahead for the Mechanism include, most prominently ensuring continued active engagement by all States parties and securing adequate funding in line with the Terms of Reference and Conference Resolution 3/1 to maintain the high quality of the reviews and full respect for the Terms of Reference.
How can the COSP ensure that UNCAC review recommendations are followed up on?
Subsequent to Decision 5/1 of the COSP in November 2013, we started gathering information on follow-up actions taken by countries to their respective reviews. We look forward to guidance of the Implementation Review Group and the COSP for more systematic collection of information in accordance with the Terms of Reference of the Review Mechanism.
How can the COSP measure the impact of UNCAC, whether it’s making a real difference? (as opposed to e.g. amendments to laws that are not implemented.)
We have started documenting the true impact of the Convention through the impact of the IRM and started analysing this in 2013, when we presented the note “Translating commitment into results: impact of the Mechanism of Implementation Review of the Convention Against Corruption” to COSP 5. We have continued to gather information on real change through actions taken by States in relation to their reviews.
Another area of impact is how the Convention has helped de-sensitize the issue of corruption and bring it to the centre of attention and discussion in various international fora. This impact can be seen through the inclusion of action against corruption in the recently adopted Sustainable Development Goals (under Goal 16). Substantially reducing corruption and bribery, as well as the building of effective, accountable and inclusive institutions is proof thereof and are now part of the 2030 Agenda. The achievement of this Goal can only truly be accomplished through the full implementation of the Convention.
The 6th COSP is advertised as having a focus on the private sector and on public-private partnerships against corruption. What is the result hoped for on this subject at the 6th COSP?
One of the draft resolutions to be considered by the Conference is “Partnership of state and business in the prevention of and fight against corruption”. It would encourage enhanced private-public cooperation in line with Article 12 of the Convention and, among others, aim to increase transparency of beneficial ownership of companies, enhance cooperation between the private sector and law enforcement in preventing and combating corruption as well as improving the protection of reporting persons. Should the Conference decide to proceed along the lines of this resolution, this would be in line with its long-standing commitment to encourage the private sector to become more engaged and play a stronger role in partnership with Governments to prevent and fight corruption.
How can the UNCAC and the COSP address the serious problems of grand corruption and state capture? Are additional mechanisms needed?
The Convention does not distinguish between ‘grand’ and ‘petty’ corruption. It considers any kind of corruption as dangerous. Assuming the distinction is useful, however, it is important to note that the Convention contains a large number of articles that can address grand corruption. Of particular relevance are the provisions criminalizing foreign bribery and money-laundering, on international cooperation as well as on the recovery and return of the proceeds of corruption. Reinforced by the almost universal application of the Convention – with 177 States parties to date – the Convention provides a formidable framework to tackle cases of grand corruption. The effective implementation of the Convention will ensure bringing the corrupt to justice in particular where cases involve high-level public officials and their associates.
For the first time, there is a COSP agenda item referring to Article 63(4)(c) and covering COSP cooperation with NGOs as well as with regional and international organisations. What is the significance of this agenda item and how will it help resolve the controversy about civil society participation in UNCAC subsidiary bodies and in the review process?
We expect States parties to discuss the role of civil society in supporting the implementation of the Convention, including a more in-depth discussion on what its contribution may be in the context of the review of implementation. It is important to recall that the international framework for the implementation of the Convention, including the Conference of States Parties and its subsidiary bodies, is founded on consensus and mutual respect for all States parties. Hence, we hope that this sixth session of the COSP will provide an important forum and opportunity to re-engage in a constructive dialogue on these matters.
There are always countries that block civil society inclusion, is there any way around this?
It is counterproductive and superficial to maintain that some countries block civil society institutions. We are witnessing a trend of an ever-increasing number of countries inviting and encouraging the contribution of civil society in the fight against corruption in general and the involvement of CSOs in the review process in particular. Overall, more than 80% of countries under review involved other stakeholders at some stage of their review.
At the same time, we need to acknowledge the fact that the Terms of Reference highlight the intergovernmental nature of the Mechanism and we ought to respect the position of States who believe that the IRG and other subsidiary bodies are and should remain inter-governmental in nature and who want to give more time to the implementation of Resolution 4/6 to allow for the building of confidence in the role of non-governmental organizations in the review process so as to create the basis for further constructive dialogue on the issue
How would UNODC like to see the role of civil society and NGOs developing in the UNCAC context in the coming years? What advice would you give civil society groups so they can have the most impact in supporting UNCAC implementation and anti-corruption efforts?
The project of the UNCAC Coalition and UNODC through which stakeholders, focal points and CSOs actively engaged in the fight against corruption in their respective countries, and were jointly trained on the IRM and the Convention, has had a very positive impact on the work we see in preparation of, during and following the outcome of the country reviews. To date, 248 CSO representatives from 96 countries have been trained, the majority of these were trained jointly with their government representatives. This strengthening of the dialogue, and in some cases opening the lines of communication between these stakeholders, is an important aspect of the positive impact we attribute to the IRM. We would naturally hope to see this enhanced further during the next cycle, in particular as the role of civil society is included in Chapter II of the Convention, namely with regards to preventing corruption.