Professor Juliet Sorensen (Northwestern University Pritzker School of Law) and Northwestern Law students David Hall and Kobby Lartey recently attended the Seventh Conference of States Parties to the United Nations Convention Against Corruption in Vienna, Austria. See here for more information on the Conference. This post is from David Hall.
One of the most difficult barriers to enforcing anti-corruption regulations is that entities with the power to do so are often corrupt governments with no impetus to act. The” Corruption & International Laws and Judgments” event at this year’s Conference of the States Parties to the UN Convention Against Corruption considered how to overcome this barrier. Its consensus was that effective anti-corruption regulation will require better processes through which those regulations are created, better review of their implementation, and enforcement which is capable of compelling state action. In addition, focusing on procedures which circumvent the common causes of corruption will help us to avoid negative externalities that incentivize the spread of corruption in the first place.
Each of these important points arose in separate contexts (detailed below), but they will only work as part of a whole if we want to enforce anti-corruption values on recalcitrant countries.
As Gillian Dell, Secretary of the UNCAC Coalition and Head of the Conventions Unit for Transparency International, pointed out, the UNCAC itself is a prime example of how the processes by which formal resolutions from the Conference of States Parties are created can make or break those resolutions. Any country who wants to prevent a resolution need only wait until the eve of a vote to introduce an objection for which it will receive no political backlash and which may not be overturned.
This potential for political gamesmanship creates a myriad of issues for anyone interested in transparency in governance. Article 13 of the UNCAC declares an interest in “[e]nhancing the transparency of… decision-making processes,” so the signatories to the UNCAC are ostensibly among those bothered by the lack of transparency in its process for adding new provisions. And for that matter, in the process by which countries are reviewed for compliance with existing provisions, which is not open to civil society. France Chain, Senior Legal Analyst in the OECD Anti-Corruption Division, agreed that this review process should be more similar to the OECD’s review of compliance with is Anti-Bribery Convention but with the added benefit of meaningful enforcement mechanisms. Without the benefit of regularly published peer review, the UNCAC will never be fully committed to transparency.
Of course, if failing to promote transparency undermines the UNCAC’s credibility, failing to punish signatories who violate not just the UNCAC but also the Declaration of Human Rights demolishes it. These countries ignore basic tenets of due process to target individuals that work against their corruption. Harry Hummel, Associate Policy Director of the Netherlands Helsinki Committee, analogized the deliberate targeting of human rights defenders to historical practices of marginalizing individuals through directed use of psychiatric torture masquerading as “treatment.” The only difference is that these societies are carrying out this marginalization through a captured prosecution and judiciary. Instead of corrupt actors using psychiatric norms to target and isolate their political detractors, they can now do so through their criminal legal systems. Fighting corruption will also mean making sure that these efforts do not go unchallenged.
But once we have a means of influencing corrupt actors to change their ways, we should be especially mindful of the methods they adopt to prevent further corruption. With this goal in mind, Juliet Sorensen, the Harry R. Horrow Professor in International Law and Director of the Bluhm Legal Clinic at Northwestern Pritzker School of Law, described five “universal truths” of corruption. These truths are: (1) corruption is motivated by money, (2) corruption occurs at transaction points, (3) corruption occurs in contexts in which personal relationships matter, (4) corruption kills growth, and (5) criminal justice is necessary, but insufficient in combatting corruption. Understanding the circumstances that breed corruption, she reasoned, will allow us to create new means of combatting its future growth.
Professor Sorensen used examples from the Endangered Species Act – the U.S. implementation of the Convention on International Trade in Endangered Species – to demonstrate the pathologies of corruption. For example, investigative reporters who embedded computer chips into elephant trunks were able to track their movements through various international markets which would necessitate bribes or some other corruption at each transfer point. To fight that corruption, a government might have focused police efforts on those transfer points, might have prevented relationship-based permits which allowed for the collection of tusks or might have increased fines to reduce the profitability of their sale.
All the panelists agreed that we need to create stronger international mechanisms for reviewing and reforming these corrupt governments. The UNCAC Secretariat could create processes for ad hoc evaluations of human rights violations stemming from attempts to silence civil society participation in the fight against corruption. They could also promote that participation by involving civil society in the review process for anti-corruption regulations. Finally, they must create enforcement mechanisms with real teeth. These corrupt governments will continue to operate with impunity unless they can no longer silence those who are speaking out against them. But this will not happen unless we create stronger international institutions with voices that governments cannot ignore.
Save Money With FCPA Connect
Keep it simple. Not all FCPA issues warrant a team of lawyers or other professional advisers. Achieve client and business objectives in a more efficient manner through FCPA Connect. Candid, Comprehensive, and Cost-Effective.
Connect
