UNITED NATIONS CONVENTION AGAINST CORRUPTION (UNCAC)

 

BACKGROUND

The United Nations Convention against Corruption (UNCAC) is the only legally binding universal anti-corruption instrument. The Convention is a unique tool for a comprehensive response to a global problem. While implementation of UNCAC is ultimately the responsibility of governments, the Convention also has significant value as an anti-corruption tool for the private sector, academia and civil society.

In its resolution 55/61 of 4 December 2000, the General Assembly recognized that an effective international legal instrument against corruption, independent of the United Nations Convention against Transnational Organized Crime (resolution 55/25, annex I) was desirable and decided to establish an ad hoc committee for the negotiation of such an instrument in Vienna at the headquarters of the United Nations Office on Drugs and Crime.

The text of the United Nations Convention against Corruption was negotiated during seven sessions of the Ad Hoc Committee for the Negotiation of the Convention against Corruption, held between 21 January 2002 and 1 October 2003.

The Convention approved by the Ad Hoc Committee was adopted by the General Assembly by resolution 58/4 of 31 October 2003.

These are the highlights of the Convention:

  • Prevention
  • Criminalization
  • International Cooperation
  • Asset Recovery

 

 

PREVENTION

Corruption can be prosecuted after the fact, but first and foremost, it requires prevention. An entire chapter of the Convention is dedicated to prevention, with measures directed at both the public and private sectors. These include model preventive policies, such as the establishment of anticorruption bodies and enhanced transparency in the financing of election campaigns and political parties. States must endeavor to ensure that their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit. Once recruited, public servants should be subject to codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures.

CRIMINALIZATION

The Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption, if these are not already crimes under domestic law. In some cases, States are legally obliged to establish offences; in other cases, in order to take into account differences in domestic law, they are required to consider doing so. The Convention goes beyond previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and laundering of the proceeds of corruption. Offences committed in support of corruption, including money-laundering and obstructing justice, are also dealt with. Convention offences also deal with the problematic areas of private-sector corruption.

INTERNATIONAL COOPERATION

Countries agreed to cooperate with one another in every aspect of the fight against corruption including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court to extradite offenders. Countries are also required to undertake measures that will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.

ASSET RECOVERY

In a major breakthrough, countries agreed on asset-recovery, which is stated explicitly as a fundamental principle of the Convention. This is a particularly important issue for many developing countries where high-level corruption has plundered the national wealth, and where resources are badly needed for reconstruction and the rehabilitation of societies under new governments. Reaching agreement on this chapter has involved intensive negotiations, as the needs of countries seeking the illicit assets had to be reconciled with the legal and procedural safeguards of the countries whose assistance is sought. As an Annex to the Conventions made in 2004, these highlights arise from the concerns of the States Parties to this Convention that include:

  • Concerned about the seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law,
  • Concerned also about the links between corruption and other forms of crime, in particular organized crime and economic crime, including money- laundering,
  • Concerned further about cases of corruption that involve vast quantities of assets, which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable development of those States,
  • Convinced that corruption is no longer a local matter but a transnational phenomenon that affects all societies and economies, making international co-operation to prevent and control it essential,
  • Convinced also that a comprehensive and multidisciplinary approach is required to prevent and combat corruption effectively,
  • Convinced further that the availability of technical assistance can play an important role in enhancing the ability of States, including by strengthening capacity and by institution-building, to prevent and combat corruption effectively,
  • Convinced that the illicit acquisition of personal wealth can be particularly damaging to democratic institutions, national economies and the rule of law.

The General provisions, in Article 1. Statement of purpose, it is stated that the purposes of this Convention are to:

  1. Promote and strengthen measures to prevent and combat corruption more efficiently and effectively;
  2. Promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery;
  3. Promote integrity, accountability and proper management of public affairs and public property.

In Article 2 for the purposes of the Convention, the terms used are:

  1. “Public official” shall mean:
  1. any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority;
  2. any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party;
  3. any other person defined as a “public".

These instruments mandate that State Parties criminalise and punish a variety of corrupt practices. Relevant domestic laws have a direct impact on business, especially in States Parties to instruments that require the establishment of liability of legal persons for corrupt acts.

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