22 April 2021 –

What is the way forward to identify and discuss weaknesses and gaps in the global anti-corruption framework after the UN Special Session against corruption in June? On which issues has the UNCAC proven to be inefficient since it entered into force in 2005?

These were two questions at the center of a briefing session hosted by the UNCAC Coalition alongside the Governments of Colombia and Norway, with participation from over 40 delegates. Ms. Gillian Dell, Head of Conventions Unit at Transparency International and board member of the Coalition, shared information and remarks on a request to establish an intergovernmental expert working group which will develop technical proposals for new frameworks and mechanisms to address weaknesses in the current international legal framework and infrastructure.

This follows the recent publication of a letter signed by nearly 100 civil society groups, calling on the UN General Assembly to take action on globalized corruption, and to consider the proposal concerning the political declaration, which is the main outcome of the UNGASS.

Throughout the session, delegates pointed out that great strides and significant progress have been made thanks to the UNCAC, meriting recognition. More efforts to comprehensively evaluate the implementation of the Convention, and addressing existing gaps within the framework may be the right step forward to ensure that the UNCAC reaches its full potential, and achieves what it set out to do almost two decades ago.

However, other views point to the fact that corruption is dynamic, and much has changed in the world since the conception of the Convention back in 2003. New challenges have emerged: corruption involving vast quantities of assets among the highest political tiers, the proliferation of safe havens, complex company structures, hidden beneficiaries and a shrinking space for civil society are just a handful among many new ‘threats’ to anti-corruption practitioners.

Measures to address the evolving landscape are paramount, and must be reflected in the language contained in the UNGASS’ political declaration. In this regard, the FACTI Panel Report’s 14 recommendations are a timely inspiration with regards to the path forward for the UNCAC and beyond. As corruption continues to fester on a transnational scale, the monitoring and evaluation of existing provisions should supplement advocacy for more action and new commitments.

 Ms. Dell presented the idea of commissioning a new intergovernmental expert working group to address transnational organized corruption, high-level and large-scale corruption, with a remit including issues of international asset recovery. Pervasive corruption networks, especially those which are networked and cross-border in nature, are not adequately tackled by the UNCAC. Why is this the case?

During her intervention, she pointed to some of the weaknesses and gaps within the Convention:

• Prevention and detection gaps – In UNCAC Article 52, in non-mandatory provisions, states are invited “to consider” establishing effective financial disclosure systems for appropriate public officials, and “to consider” requiring those officials to report their interest in a foreign financial account. This is weak, like the related provisions on asset and interest declarations in Article 8. A joint UNODC/World Bank/OECD Guide published in 2020 provides all the standards and guidance that are missing from UNCAC, including about transparency and verification. Stronger standards in this area should be covered in a new framework.
• Criminalization gaps – With regard to the transnational, networked corruption, weaknesses and gaps arise from the lack of cross-referencing between the UNCAC and UN Convention against Transnational Organized Crime (UNTOC). That link should be actively made and it should be established that, at a minimum, corruption offences involving high-level officials and vast quantities of assets – known in many countries as aggravating factors – should be universally recognized as “serious crimes” under UNTOC.
• Jurisdictional gaps – A key reason for jurisdictional gaps is national justice systems that are “unable or unwilling” to pursue corruption cases. This often occurs in cases of high-level, large-scale corruption. In case no enforcement authorities are willing and able to take on a case, another solution is to provide non-state actors with the power to initiate a prosecution in the public interest, with associated technical and financial assistance.
• International coordination gaps – Both UNCAC Article 49 and UNTOC Article 19 foresee the possibility of multilateral agreements for joint investigative bodies for matters that are the subject of investigation, prosecution or judicial proceedings in more than one state. New ways of addressing cooperation and coordination should be considered. An independent international coordination body with its own staff would enable a pooling of resources and accumulation of experience. It would help improve international cooperation and reduce duplication of efforts. Such a body could also help provide assistance to countries lacking resources and skills.
• International dispute settlement gaps – UNCAC Article 66(2) foresees a process for settlement of disputes about the interpretation or application of the Convention. This could provide the basis for establishing an arbitration mechanism, another subject that would require elaboration in a supplementary agreement.

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In conclusion, Ms. Dell pointed out that an intergovernmental expert working group should do 3 things:

1. Study in-depth areas not yet explored by the UN system – especially possible new structures;
2. Summarize known and already-studied tools that have not been introduced into the UNCAC;
3. Develop concrete, technical proposals for new legal and institutional frameworks. These proposals could provide the basis for new multilateral agreements or an optional protocol to the UNCAC.