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Middle Point, End of the Road or Just the Beginning? Anticorruption Efforts, Failures and Promises at the United Nations

In: Max Planck Yearbook of United Nations Law Online
Author:
José-Miguel Bello y VillarinoResearch Fellow, School of Law of the University of Sydney; Diplomatic Corps of Spain (on leave) jose-miguel.bellovillarino@sydney.edu.au

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Abstract

Although first noted discussions at the United Nations (UN) level about corruption are reaching their 50th anniversary, the core of the UN activity against corruption has taken place in the last quarter of a century. The 2021 special debate at the UN General Assembly was an opportunity for the institution to pause and reflect about its role over this period in the international fight against corruption. It also presented a (partially missed) opportunity for the UN to renew its commitment and reconsider its approach for the next 25 years. This article provides first an overview of the UN activity against corruption, which relies on two main pillars. On the one hand, the well-known United Nations Convention Against Corruption (UNCAC) in force since 2005, which has received remarkable academic attention and is an example of success in terms of ratifications. On the other hand, the insertion in Sustainable Development Goal 16 of an anticorruption objective (16.5) and its related indicators, which is not as widely acknowledged by anticorruption activists and scholars but serves as a recognition of the importance of tackling corruption in the development context.

The article offers a historical contextualisation of both initiatives, analyses this dual approach and explores the impact of these initiatives in the global and domestic contexts. Based on previous research from the author, it highlights their joint value as a true global statement against corruption and an authoritative recognition of its damaging effects and their importance for peace, security, development, human rights and human wellbeing. The article presents, nevertheless, a critical analysis showing their shortcomings and the lack of a real effect of these instruments in overcoming or at least reducing corruption and kleptocracy at the international level. It proposes three different avenues within the UN mandate and fields of action that could guide newer initiatives. First, it explores the possibility of individual (non-criminal) ‘smart’ sanctions, modelled on the counter-terrorism regime driven by national governments, but assisted by United Nations Office on Drugs and Crime (UNODC). Second, the article considers how the economic and trade dimension of the UN, especially at the regional economic commissions level, could be reinvigorated with a mandate to tackle corruption through economic instruments. Third, it analyses how an optional protocol to the UNCAC could give more ‘teeth’ to the Convention. The general conclusion is that the UN, within its existing powers, has significant potential to take anticorruption initiatives a step further as the current ones have almost exhausted their shelf life.

Abstract

Although first noted discussions at the United Nations (UN) level about corruption are reaching their 50th anniversary, the core of the UN activity against corruption has taken place in the last quarter of a century. The 2021 special debate at the UN General Assembly was an opportunity for the institution to pause and reflect about its role over this period in the international fight against corruption. It also presented a (partially missed) opportunity for the UN to renew its commitment and reconsider its approach for the next 25 years. This article provides first an overview of the UN activity against corruption, which relies on two main pillars. On the one hand, the well-known United Nations Convention Against Corruption (UNCAC)1 in force since 2005, which has received remarkable academic attention and is an example of success in terms of ratifications. On the other hand, the insertion in Sustainable Development Goal 16 of an anticorruption objective (16.5) and its related indicators, which is not as widely acknowledged by anticorruption activists and scholars but serves as a recognition of the importance of tackling corruption in the development context.

The article offers a historical contextualisation of both initiatives, analyses this dual approach and explores the impact of these initiatives in the global and domestic contexts. Based on previous research from the author, it highlights their joint value as a true global statement against corruption and an authoritative recognition of its damaging effects and their importance for peace, security, development, human rights and human wellbeing. The article presents, nevertheless, a critical analysis showing their shortcomings and the lack of a real effect of these instruments in overcoming or at least reducing corruption and kleptocracy at the international level. It proposes three different avenues within the UN mandate and fields of action that could guide newer initiatives. First, it explores the possibility of individual (non-criminal) ‘smart’ sanctions, modelled on the counter-terrorism regime driven by national governments, but assisted by United Nations Office on Drugs and Crime (UNODC). Second, the article considers how the economic and trade dimension of the UN, especially at the regional economic commissions level, could be reinvigorated with a mandate to tackle corruption through economic instruments. Third, it analyses how an optional protocol to the UNCAC could give more ‘teeth’ to the Convention. The general conclusion is that the UN, within its existing powers, has significant potential to take anticorruption initiatives a step further as the current ones have almost exhausted their shelf life.

1 Introduction: Corruption, from International Taboo to Organisational Tagline

Societal taboos are prohibitions based on the believes of a group that an individual should not mention – or publicly acknowledge performing – certain practices as these are either sacred or cursed and, in any case, too dangerous. As the Encyclopaedia Britannica notes, ‘although taboos are often associated with the Polynesian cultures of the South Pacific, they have proved to be present in virtually all societies past and present’.2 It is difficult to find a better suited analogy to corruption debates in the international arena before the mid-late 90s,3 as corruption was still a taboo word in the years immediately after the fall of the Berlin Wall.4 Today, contrarily, most international fora are willing to engange with the issue.5 At some point in the last decade of the 20th century, something happened that made corruption a mainstream and central issue in the international arena in general,6 and at the United Nations level in particular.

That explosion of attention towards corruption in the last 25 years at the global and regional levels goes beyond the ‘remarkable’ and moves perhaps into the territory of the ‘unexpected’. Corruption moved to the centre stage without a singular triggering event.7 Abruptly, at the turn of the century, a phenomenon that has existed, at least, since the beginning of modern representative government,8 and, probably, can be traced back much further,9 became a central concern in global policy.

This interest was matched by an increasing interest in the scholarship,10 which in turn reverberated in further consideration of the topic in policy debates. In that interaction, the different parts of the anticorruption industry, to use Sampson’s terminology, reinforced each other and attracted more and more attention and resources,11 to the point of placing corruption as one of the central topics in international policies and politics of the 21st century. Fukuyama even called ‘in many ways […] the defining issue of the twenty-first century’.12 It may then surprise readers that corruption had already been an area of concern and work for the United Nations for much longer.

This issue of the Yearbook is dedicated to reflecting on the thematic legal experiences of the United Nations in the last 25 years. In the context of corruption, the time between 1996 and 2021 is better defined as a generational shift or a change of century and not just the passage of another 25 years in the life of the organisation. In this time, we have witnessed a mesmerising process in which corruption has pushed through to a place at the centre stage of the United Nations work, coming from the periphery of international relations and an even remoter place in international law. Nonetheless, we cannot ignore that the UN anticorruption work – at a much more modest level – had another 25 years of experience, probably making the United Nations the only international organisation with substantive expertise before the 1980s.

2 First Steps for a United Nations’ Approach to Corruption

Although often forgotten in histories of anticorruption, in 1975 the United Nations General Assembly (unga) passed a ground-breaking resolution on corruption which, in its very first point, ‘condem[ed] all corrupt practices, including bribery, by transnational and other corporations, their intermediaries and others involved, in violation of the laws and regulations of the host countries’ to then request the Economic and Social Council (ecosoc) to make ‘recommendations on ways and means whereby such corrupt practices can be effectively prevented’ (Paragraph 6).13 This resolution followed the first noted concern in that regard by a United Nations body, a 1972 resolution of that very same Economic and Social Council,14 which discussed the problems created in host countries by the illegal or abusive practices of multinational corporations, although without mentioning corruption by its name and, therefore, respecting the taboo.15

Several authors have contextualised this resolution as part of a United States-driven effort to internationalise16 its Foreign Corrupt Practices Act (fcpa).17 Although probably correct in terms of the ultimate forces behind the process which triggered the resolution, the scope of these first UN documents was already showing some ‘signs’ of a ‘distinct’ UN approach to corruption, characterised, in my view, by three main elements that will be explored across this article.

The first one is the relevance of a North-South standpoint in the analysis of corruption18 and the importance of cooperation to address it (Paragraph 5 of the resolution). It is particularly salient that the unga was also anticipating the innovative idea of ‘importing’ corruption into countries, that is, it was not about local corrupt public officials, but about bribing-inclined foreign corporations. Whereas the process of internationalisation of the fcpa was mainly concerned with the levelling of the playing field among developed countries19 – which was meant to be done through the criminalisation of bribery of foreign officials by corporations regardless of the origin of the corporation – the UN approach wanted to look at the effects for those developing countries derived from having transnational corporations willing to bribe their officials.20 In other words, the UN was particularly interested by the connection between corruption and development.

The second one, is the concern about effectiveness of anticorruption measures, at least from a technical perspective. In that sense the mandate from the unga to ecosoc about the need to investigate effective preventive measures can be seen as an anticipation of its later work. Lacking the authority or the capacity to impose ‘hard’ international anticorruption measures, the UN realised very early on that the only way to fight corruption in domestic settings was offering the evidence regarding the effectiveness – as well as political support – for the implementation of domestic measures by its members.

Finally, the third, and probably most noticeable aspect of this resolution from our standpoint, is its date. Many authors, myself included, have used as a convenient starting point in the genealogy of discussions about corruption in international organisations the arch-famous discourse of World Bank President Wolfensohn on 1 October 1996 to its Board of Governors, where he referred to the ‘need to deal with the cancer of corruption’.21 Others prefer instead to place the initial point of their analyses at the preparatory steps for the 1996 Inter-American Convention Against Corruption (iacac).22 Yet, if one looks back to the 1975 unga Resolution, although its wording may have been less compelling, its content was not less forceful than Wolfensohn’s speech and the Global-South spirit of the iacac was already present in the 1975 Resolution.

This foresight about the relevance of corruption in international policies was the resolution’s most remarkable aspect and its weakest point. A call to condemnation to ‘corruption at the international level’ and calling governments ‘to prevent the practices and prosecute those who engage in it’ was perhaps too much for an international environment not yet mature. Certainly, it was one of the causes of its limited trajectory besides a short follow-up reporting from the Secretary General on the implementation of the resolution as requested in its point six.23 This converted the resolution into a ‘paper tiger’– in the words of Hough24 – where the grandiloquent wording hid the lack of substantive initiatives.

Whereas other unga Resolutions with no concrete mandate are recalled year after year, Resolution 3514(xxx) remained the UN’s sole relevant output on corruption for more than 20 years. In fact, besides some minor work at the level of specialised working groups or in connection to other criminal issues,25 corruption had to wait almost ten years to reappear substantively again at the UN level, now under the guise of the conflict of interests of public officials.

This new attempt to ‘do something on corruption’ was triggered in 1989, when the UN sponsored an Interregional Seminar on Corruption in Government (The Hague, 11–15 December 1989) where representatives of 23 States – mainly developing countries – and members of academia, civil society and domestic anticorruption officials prepared the first draft of a manual to combat corruption. The objective was to approve that document in the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders,26 but the code was not formally endorsed in the Congress.

A common characteristic of these pre-1990s attempts to address corruption at the UN level was the combination of ambitious wording with broad support and a very limited practical impact. Perhaps, as Hough noted referring to the 1975 Resolution, this apparent contradiction was the very reason for the UN’s early involvement in an issue as sensitive as the corrupt behaviour of public officials. As in many other domains, ‘the UN [did] not tend to have the tools to enforce (or even monitor) its own anti-corruption clarion calls’.27 In that view, those initiatives were just a way to pay lip service to an issue of concern for many countries, but too sensitive to many others to actually do something. For others, as Katzarova, these efforts are better seen as a ‘road not travelled’, a legacy of the Chile of Allende – that kept resonating in the United Nations Conference on Trade and Development (unctad) and the United Nations Centre on Transnational Corporations (unctc) as the view of the Global South and the G77 – which saw corruption as ‘corporate influence’ in the public sphere,28 but that never reached the point of concretisation in a formal policy or legal document.

Regardless of the relevance that one places to these initiatives, the key consequence of this work is that United Nations had, at the turn of the century, a more substantive background and more legitimacy than other organisations more vehemently asserting their long-time involvement with anitcorruption.29 Therefore, when the right time came 25 years ago – with the iacac being signed and the work at the Organisation for Economic Co-operation and Development (oecd) solidly advancing towards the 1997 oecd Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (oecdccb)30 – the unga was ready to define a UN view, which acknowledged and levered its previous anticorruption work. Concretely, this background was explicitly used as a source of legitimacy in the two key resolutions on corruption that can be seen as the trigger for the current UN approach to corruption.

Resolution 51/59 ‘Action Against Corruption’, followed the work mentioned above regarding public officials.31 Now the environment was finally favourable to more assertive actions in the field. The Resolution acknowledged the work of the Economic and Social Council on public administration and development and adopted the International Code of Conduct for Public Officials, recommending ‘it to Member States as a tool to guide their efforts against corruption’ (Paragraph 2).

Resolution 51/191, the ‘United Nations Declaration against Corruption and Bribery in International Commercial Transactions’, as its name indicates, reflected the endorsement at UN level of the US-driven initiative at the oecd to criminalise bribery of foreign officials, which is favourably portrayed in a long final recital of the text. From a legal point of view, the most relevant reference is Paragraph 10 of the Declaration (annexed to the Resolution) which commits States – with stronger wording that normally seen in other declarations or in other paragraphs of this one – to ensure that ‘bank secrecy provisions do not impede or hinder criminal investigations or other legal proceedings relating to corruption, bribery or related illicit practices in international commercial transactions, and that full cooperation is extended to [g]overnments that seek information on such transactions’.32 This drafting goes beyond the wording of Article 9(3) of the oecd Convention and reflects a distinct UN approach, where cooperation is at the core of its legal anticorruption work, which was also reflected in the third recital of Resolution 51/59, when it stated that ‘cooperation to prevent and control [corruption] is essential’.

One can then see how these resolutions set the ground for the turning point for the UN and allowed the administrative machinery to be more committed to the anticorruption cause as, perfectly illustrated in a quote from then-Secretary-General Kofi Annan to the General Assembly in 1998 deeming good governance as – perhaps – ‘the single most important factor in eradicating poverty and promoting development’.33

Those final years of the 20th century where therefore essential as they set the ground that materialised in the early years of the 21st century in the uncac. Without that turning point, the uncac may have never happened. The lack of political support in the early nineties had apparently derailed some plans to have an uncac for the 50th anniversary of the United Nations.34

One cannot ignore either that the Convention is, to some degree, an anomaly in the international codification process of the early 2000s: an instrument that cannot be traced back directly to the triggers of the time, such as terrorism, security concerns, interests of the business sector, climate change, etc.35 There was not major even that activated the negotiations, just a change of sensitivities at the right time. Hence, it was the combination of a favourable environment and an adequate institutional background what made the Convention possible.

3 The United Nations Convention against Corruption

With the landscape all set, the formal kick-off for a legal instrument was marked by a proposal to have a separate instrument for corruption, sent to the General Assembly in early January of 2000 by the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime.36 That same year the unga established the Ad Hoc Committee for the Negotiation of the Instrument in Resolution 55/61,37 and it took just seven relatively smooth negotiating sessions38 to have a document ready for signature on 9 December 2003 in Merida, Mexico. The Convention, in accordance with Article 68(1), entered into force on 14 December 2005.

Its adoption was hailed as the culmination of the UN’s work in the corruption domain and, yet, only ‘a beginning’,39 as the mere existence of a legal instrument would not do much to solve corruption. It required commitment, adequate implementation, broad ratification and a change in the international discourse about corruption. The UN, as an institution, was quickly reminded about this, when the overwhelmingly positive reception of the Convention40 was quickly overtaken in media and policy circles by the surfacing of damming reports of corruption of UN officials in the Oil-for-Food Programme in Iraq, finally confirmed in an internal investigation.41

Looking at the Convention from the standpoint of 2003, one could see it along two lines. One looked at the uncac as a regulation. This view was not particularly favourable for the text, as, in the usual dichotomy between ‘depth’ of the regulation and ‘rigidity’ of its rules and enforcement mechanisms,42 the uncac drafters opted to lower both. As some noted, this was something that the negotiators were aware of at the time and considered it ‘with a mixture of ambition and apprehension’.43 They had to ensure that the anticorruption message was clear while making global support for such a message feasible.

The other way saw the uncac as a political statement. This is, in my view, the real value of the Convention, as the modest regulatory ambition not only facilitated a quick outcome, but also served a purpose of attracting more reluctant countries, finally delivering a strong global anticorruption message. The best illustration of such a message can be found in the foreword of then-Secretary-General Annan to the unodc edition of the Convention: ‘It will warn the corrupt that betrayal is no longer tolerated’.44 From this perspective, the uncac has a primary value as a warning; a formal and legal declaration that corruption is not accepted from an international perspective and that all States should commit themselves to fight it.

There is also a third way to look at it, probably the most favourable one, which would stress both the capacity to have a text that many can ratify and an ambitious scope. The uncac introduced a ‘comprehensive set of standards, measures and rules […] to strengthen […] legal and regulatory regimes’45 and it was the first time a treaty established rules for the return of assets.46 It is also relevant that the uncac sought to close legal loopholes and did not restrict itself to grand corruption, organised crime or transborder events – like the oecdccb– including instead in Chapter 3 provisions addressing petty corruption and actions with merely national character.47 In the same tenor, the uncac must be praised for the achievement to incorporate within a universal treaty the vastly different views in the world about corruption.48 Finally one cannot ignore that the uncac was able to ‘tackle diverse corruption offences [while] incorporate[ing] a higher number of players than its counterparts’49 and their disparity of views.

However, if one looks at the uncac in more textual detail, this optimistic view is more difficult to sustain, as the Convention was intentionally drafted to allow ‘[p]arties great leeway in determining the extent to which the treaty will influence their legal systems’.50 Although the number of ‘apparent’ mandatory provisions51 seem to define a powerful legal instrument, when one looks at the conditions inserted in many of these articles, the result is a text awash ‘with qualifying language and semi-mandatory provisions’,52 estimated to be over 40% of all provisions.53 For some these are ‘safeguard clauses’,54 but for others the uncac, is a weak norm, ‘especially with respect to political corruption, private sector corruption, and asset recovery’.55 In this latter view, the lack of mandatory language renders the uncac ‘toothless’.56

As Weilert noted, the problem may be that stronger anticorruption interventions would be affecting the inner structure of States or affiliated with State power.57 Addressing this concern, the uncac ‘reassures’ States considering becoming a party through its explicit protection of sovereignty (see, for example, Article 4) although this may be undermined by its substantive provisions, which ‘inevitably require infringements upon the sovereignty of another state’.58 In any case, the rules in the uncac are not expected to be progressively developed or evolve into something stronger, given that the Convention is not particularly amenable to change,59 so the actual and expected constraints on signatories are limited in nature. However, if the uncac had strong enforcement mechanisms, it may still not be toothless.

Chapter 7 of the uncac, ‘Mechanisms for Implementation’, comprises two articles – 63 on the Conference of the States Parties (CoSP) and 64 on the Secretariat. Despite its title, the chapter does not envisage any concrete mechanisms to monitor implementation, because the negotiating parties had agreed that that it should not ‘deter participation’.60 This approach was rectified in 2009, during the 3rd CoSP in Doha,61 ‘under heavy pressure from governments, anti‐corruption organizations, civic associations, researchers, multinational development banks, and Transparency International’s Advocacy and Legal Advice Centers’.62 The current monitoring mechanism was hence created as an ‘intergovernmental process’ which ‘shall not serve as an instrument for interfering in the domestic affairs’.63

The system has had two cycles since its creation: the first cycle (2010–2015) covered Chapters 3 (criminalisation and law enforcement) and 4 (international cooperation) and the second (2015–2020) covered Chapters 2 (prevention) and 5 (asset recovery).64 Parties are peer-reviewed by two other parties on the basis of self-assessment checklists. This design definitely meets the requirement of not interfering in the domestic affairs. Follow-ups on any recommendations, assuming no delays, would be separated by a decade; reports can be kept confidential and country visits are voluntary.65

Given these limitations, some have called the uncac a lex simulata ‘apparently operable, but never intended to be applied’.66 In my view, this is an excessive and too harsh judgment. Yes, the vagueness and non-mandatory character of some of its key provisions have allowed some countries to ratify the convention without feeling obliged to change key legislation,67 but, probably, enforcement is a more relevant problem. Some research in Kenya, Indonesia, and Bangladesh seem to suggest that the limitations of the uncac may not be gaps in the domestication process of the norms, but rather in enforcement.68 However, it is possible that the anticorruption measures contained in the uncac may not be suitable to be effective, as proved in some experiments.69

In any case, the message that the uncac delivered to the world was loud and clear: corruption is something to be fought at the international level and not just a cultural practice that can be approached with the equidistance of relativism. The Convention also highlighted the importance of a corruption-free state to create a fertile environment for sustainable development, noted in the first recital of its preamble. This reference and the increased attention to the link between corruption and development in publications which appeared around the same time,70 made the absence of corruption indicators in the Millennium Development Goals (mdg s) – or, at the very least ‘good governance’– fairly striking. This was ‘solved’ in the Sustainable Development Goals (sdg s). The next section saves the reader any discussions about such a ‘gap’ and centres instead on the inclusion of corruption in the Sustainable Development Goals, concretely sdg-Goal 16.5.

4 Anticorruption in the Sustainable Development Goals

The incorporation of corruption in the sdg s can be seen as the final ‘seal of global approval’ to the international efforts to fight corruption. Nonetheless, and in contrast to the underlying approach of the goals as a whole,71 it is doubtful that the indicators would have any impact on deliverables by 2030.

The sdg s have been defined as ‘a new coherent way of thinking about how issues as diverse as poverty, education and climate change fit together; it entwines economic, social and environmental targets in 17 Sustainable Development Goals (sdg s) as an “indivisible whole”’.72 ‘Living free of corruption’ was hence accepted as part of that ‘indivisible whole’ of ‘[p]romot[ing] peaceful and inclusive societies for sustainable development, provid[ing] access to justice for all and build[ing] effective, accountable and inclusive institutions at all levels’.73 On the other hand, if one wanted to evaluate the anticorruption related objectives in the sdg s in terms of what they are going to achieve in practice, the results would be slightly problematic.

To make the broader 16 goals more precise, the General Assembly specified several targets that together materialise each goal. Among those, corruption is covered in target 16.5 with a very particular phrasing: ‘Substantially reduce corruption and bribery in all their forms’.74 From the drafting of target 16.5 one could think that bribery is not part of corruption as a whole. This is even more evident when looking at the global indicator framework developed by the Inter-Agency and Expert Group on sdg Indicators (iaeg-sdg s) and agreed to at the 47th session of the UN Statistical Commission held in March 2016.75 The indicators’ framework establishes the measurement for substantially reducing corruption and bribery in all their forms as the:

16.5.1: Proportion of persons who had at least one contact with a public official and who paid a bribe to a public official, or were asked for a bribe by those public officials, during the previous 12 months.

16.5.2: Proportion of businesses that had at least one contact with a public official and that paid a bribe to a public official, or were asked for a bribe by those public officials during the previous 12 months.76

It is obvious from these indicators that the Statistical Commission decided that instead of measuring corruption ‘and’ bribery, the approach would be solely focused on persons’ and firms’ direct experiences of bribery and restricted to their relations with public officials. I will leave here aside the inherent problems of using surveys of bribery as a proxy for corruption, something well documented in the literature,77 and focus instead on a second issue, more problematic in the context of the sdg s but not well discussed in the literature, such as the intrinsic bias of these indicators against developing countries.

Bribes are ‘unequivocally’ a much more common instance in everyday life in countries with lower per capita incomes78 both for companies – think for example in customs-clearance settings – and individuals – for example in traffic policing. The most recent report explicitly makes that point79 – which was, anyway, not a significant insight. However, there is some evidence that the incidence of larger scale corruption, for example in public procurement, may not be that dissimilar in developing and developed countries,80 which could better complement the petty bribery indicator. In this context, the use of a different quantification system based on big data analysis, such as the Corruption Risk Index,81 would have been fairer and easier to assess over the 15-year span of the sdg s.

In any case, the data derived from sdg-Goal 16.5 will, no doubt, receive significant attention by media and place the UN as an alternative reference point to the arch-famous Corruption Perception Index developed by Transparency International.82 In the context of this article, the UN-driven approach to anticorruption highlights the success of the anticorruption industry noted at the beginning of this piece to put the issue on the table. Regretfully, it also underlines the tendency to adopt approaches that may not deliver substantive results.

However, if we look at sdg Goal 16.5 as a way to put an issue on the spotlight and monitor it, this UN initiative is more promising, particularly as it triggers several other actions, the most notable among them so far was the report on Financial Integrity for Sustainable Development,83 released by the UN-created ‘High-Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda’ (the ‘facti Panel’) in February 2021. Although it covers issues other than corruption, there are at least 27 recommendations relevant to the topic, which go from the obvious (‘All countries should enact legislation providing for the widest possible range of legal tools to pursue cross-border financial crimes’, recommendation 1A), to the very precise (‘Escrow accounts, managed by regional development banks, should be used to manage frozen/seized assets until they can be legally returned’).

An analysis of the recommendations goes well beyond the scope of this article,84 but it will suffice to note here the significant background work undertaken in the preparation of the report and the recommendations, through the production of ‘issue notes’,85 which identified the shortcomings of the extant systems. Those issue notes plus the report and recommendations could have served as a guidance for the preparation of the June 2021 Special Session on Corruption and for the Work of the General Assembly. Instead, as we will see in the next section, the result of the Special Session barely went beyond a restatement of existing processes and commitments.

5 The June 2021 Special Session

On 17 December 2018 the General Assembly decided to formally kick-start a process to hold in the first half of 2021 a special session on ‘challenges and measures to prevent and combat corruption and strengthen international cooperation’.86 In preparation, the unga mandated the Conference of the States Parties and the UN Office on Drugs and Crime to bring to the Assembly a report which could address ‘all organizational and substantive matters in an open-ended manner’.87

The main outputs of that preparation were twofold, both reflected in a draft resolution that the CoSP prepared for the unga at the end of 2019.88 On the one hand, the CoSP tasked itself, through the mediation of a resolution of the unga, to produce ‘a concise and action-oriented political declaration agreed upon in advance by consensus through intergovernmental negotiations, under the auspices of the Conference for adoption by the General Assembly at its special session’. On the other hand, it invited the ‘President of the General Assembly to convene a high-level supporting event on the margins of the special session on challenges and measures to prevent and combat corruption and strengthen international cooperation’.

The ideas behind the first point, proved to be one of the main limitations of the Special Session. It is difficult to imagine how the representatives of the State Parties to uncac could come up with innovative ideas if they were the same people used to the existing system and, on top of that, had to operate by consensus. The final political declaration, which was not voted and simply adopted in New York, consequently and unsurprisingly is a consolidation of ideas strictly within the boundaries of already existing mechanisms. It is true, however, that the CoSP conducted some intersessional meetings and held some remote consultations with ‘relevant international and regional organizations, civil society, academia and other relevant stakeholders to fully contribute to the preparatory process’, as initially envisaged.89 Yet, perhaps due by the limitations of the covid-19 environment, these consultations did not seem to bear fruit.

There is even some regression from prior practice. It is, for example, noticeable that the Political Declaration, finally titled ‘[o]ur common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation’90 completely lacks any acknowledgement of regional progress in anticorruption matters, in contrast to past practice. Resolutions 51/59 and 51/191 included references to the regional anticorruption initiatives. This one does not.

On the positive side there are some elements in the Declaration worth noting. One of them is the significant degree of attention to beneficial ownership transparency. The Political Declaration commits States, in an unqualified manner (‘we will’), to ‘develop and implement the measures necessary to collect and share such information on the beneficial ownership of companies, legal structures and other complex legal mechanisms […] by ensuring that adequate, accurate, reliable and timely information is available and accessible to competent authorities’.91 Something similar can be said regarding money laundering (Paragraph 19), which are both points analysed to some extent in the facti Panel Report, which may have influenced this unusually strong drafting.

However, despite these small highlights, the Political Declaration is mainly a repetition of previous CoSP statements, although delivered this time at a higher political level. It is difficult to find in the sections on criminalisation (Paragraphs 23–31), international cooperation (32–40), asset recovery (41–52) and technical assistance and information exchange (53–59) anything beyond invitations to delve further in existing processes.

The Political Declaration, as expected, also acknowledges the fight against corruption ‘as an enabler for the 2030 Agenda for Sustainable Development’, although, strangely, this part (Paragraphs 60–71) becomes entangled with the recognition of the roles played by the International Anti-corruption Academy (Paragraph 68) or by technologies ‘in support of anti-corruption measures’ (Paragraph 70). It is also in this section where the interrelation of gender and corruption carves a space (Paragraph 69), but in such a limited way that it has done very little to redress the gender blindness of uncac.92

Nevertheless, the most disappointing part of the Political Declaration, is reserved to its final part dedicated to looking forward for the advancement of the anti-corruption agenda and framework (Paragraphs 72–86). Instead of being forward-looking, the declaration ‘reiterates’ (‘the central and main role’ of the Cops, Paragraph 75); ‘reaffirms’ (the ‘importance’ of the Implementation Review Mechanism (irm)) or ‘welcomes’ (‘the achievements’ of the irm, Paragraph 77, or the creation of networks, Paragraph 78). This was despite some UN-driven preparatory documents, with no shortage of proposals, exceptionally signed as a contribution to the debate from ‘the UN System’.93

This could have been compensated to some extent if the ‘high-level supporting event on the margins of the special session on challenges and measures’, mentioned above was used to push a stronger and more creative agenda. Instead, it was converted in an online event in which panellists presented for 30 minutes and representatives of the States asked questions for another 45 minutes.94 Probably, if one wanted to look for inspiration for new ideas and forward-looking positions among UN Members, the place was instead the side events sponsored by the different countries, which covered issues as diverse as role of the private sector, risk management or private-public partnerships.95

In summary, analysing the outputs of the Special Session is highly unlikely to provide us with any idea of possible avenues for the next 25 years, beyond a sombre perspective of immobilism. As a leading advocate put it, it ‘fell far short’ of being a ‘roadmap’ for global anti-corruption efforts, as some claimed.96 To partially address this limitation, the next section briefly discusses some promising perspectives for the next decades.

6 The Next 25 Years

This final section explores possible paths that the UN can take in the next 25 years. Its purpose is not to sufficiently develop new ideas, but just to present possible initiatives that could increase the effectiveness of the UN anti-corruption initiatives. Of the three proposals the first (individual sanctions) and the third (an optional protocol allowing for inquiries into violations of uncac) are better seen as reinterpretations of the ideas of others. The second one (use of economic instruments) is perhaps the most novel one, although there is some degree of experience in other international economic agreements.97

6.1 Individual Sanctions

In extreme circumstances, individual sanctions could take the shape of international criminal prosecutions. As argued by Bantekas, in some situations of State capture, kleptocratic heads of state or cabinet members, could be responsible of crimes with consequences so deep and extensive that the corrupt behaviour could be considered a crime against humanity and, therefore, potentially triable by the International Criminal Court (icc).98 However, this path, explored by many others over the years in different formats,99 does not appear to be a realistic possibility in the medium term for the UN,100 as it would require a level of global agreement similar to what made the icc possible, which does not exist today.

Yet, there are other avenues worth exploring to hold individuals responsible at the international level for cases of domestic corruption. In my view, one of the most promising paths for the UN would be to develop a coordinated initiative for individual non-criminal sanctions, modelled on the counter-terrorism regime, driven by national governments, but assisted by unodc. Several domestic jurisdictions have already considered or implemented such an approach, and there may be some momentum among a number of countries to support initiatives that target corrupt individuals with ‘smart sanctions’. Moiseienko has recently explored this approach in the domestic context for those considered responsible of grand corruption, particularly in relation to denial of entry.101

This approach, as noted by Moiseienko, has already received some international endorsements in the G20 Anti-Corruption Working Group in 2012,102 and apec’s Course of Action on Fighting Corruption and Ensuring Transparency.103 Nonetheless, there is only limited guidance on how this approach could be extended broader or beyond limitations of travel into asset freezing.104 In my view this could happen following two different models: one within the Security Council and one through multi-state coordination supported by unodc. This will solve one of the big shortcomings of the current regime and the Special Session, which is how to deal with kleptocrats.105

The first option would require an ex-novo administrative system within the United Nations Security Council (unsc) framework, which could follow the model of the mechanisms established in the fight against terrorism.106 The system would aim to deliver global freezings of assets and/or general travel bans.

Although barely more than an administrative decision,107 the political environment and the system of vetos make this mechanism highly unlikely to be a feasible option. On the one hand, different sensitivities inside the unsc may make the establishment of this administrative system impossible. On the other hand, the system, even if created, may not be operational or effective. The alignments of ‘friendly governments’ – and the influence of key players – with certain members with veto powers, could block the adoption of any decisions.108

The alternative approach would bypass the unsc and rely instead on the designation of individuals by a very qualified majority of the General Assembly. Formally, this could take the form of a resolution adopted on the basis of preserving peace. Substantively, it would be reserved for cases sufficiently significant to trigger the attention of the unga. In any case, it would require an initial step in which a person or group of persons are considered to be sanctioned. This role, performed in the unsc by the Counter-Terrorism Committee, could theoretically be left to a State or group of States. Yet, from a practical perspective it could be built within the mandate of the United Nations Office on Drugs and Crime (unodc), specifically through the Commission on Crime Prevention and Criminal Justice, as one of the two governing bodies of unodc, which could receive requests for designation from civil society. As there would be no decision at the Commission level and just a proposal, there is no obvious risk of creating a quasi-judicial system in this context.

On the positive side, this second approach would circumvent the problems caused by the veto system. On the negative one, this mechanism would lack the legal force of unsc Resolutions, thus undermining the implementation at the domestic level of those sanctions.

In both cases, this proposal stresses the value of narrowing the aim of international measures to individual actors, natural or legal persons, in order to avoid stigmatising countries. This approach could also empower domestic movements to hold those persons accountable.

It could be questionable, nonetheless, if any these procedures would guarantee the respect of the human rights of the designated individuals.109 This problem has been addressed mainly by the European Union courts in the counter-terrorism context.110 In this context it is necessary to distinguish between a sanction imposing a travel ban – which, in the end, would be an internationalization of a regime similar to that established in the (US) Global Magnitsky Act,111 in which States are told not to accept in their territories certain persons – and asset freezing. Sanctions involving the restrictions of international human rights, such as freezing assets, would require a proper consideration of principles such as proportionality and due-process. In the European Union context, the ‘Kadi saga’ clearly illustrates this problem, but the issue goes beyond the interaction between international and domestic (here EU) law112 and touches upone some essential elements about the limits of anticorruption initiatives in the human rights context.

The European Court of Justice in Kadi i113 and Kadi ii114 established that individual designations by the unsc must comply with the fundamental rights recognised in EU law, therefore invalidating the immediate application of the UN-level sanctions. One could argue that the existence of appeals to independent national (here regional) bodies ensures the protection of the human rights of the designated persons, but, ideally, there should be a system of complaint and redress at the same level that the sanctions are imposed, that is, at the UN level.

6.2 Targeting Corruption through Economic Instruments

The interactions between levels of trade and prevalence (or ‘perceived’) corruption are well-researched from the economics perspective. Most articles approach these interactions with an econometrics angle, often citing Mauro’s study on how corruption affects growth115 or Wei’s on the correlation between corruption levels and foreign investment.116 Gil-Pareja, Llorca-Vivero, and Martínez-Serrano recently provided a good summary of the ‘accepted truth’ in the mainstream literature in this domain,117 which they also tested and validated in that article with modern econometric tools: although in markets in which tariffs are relatively high there is an equilibrium point where ‘the positive effect of corruption on trade (evasion) will surpass the negative effect (extortion)’, overall corruption has an empirically-proven negative effect on international trade.118

There is then a logical angle to address corruption at the international level in the context of international trade and investment. Within this framework, the UN could use the work of its regional economic commissions to explore possible interventions at the regional level to mitigate corruption, in a similar way as it is done now in the tax domain through the Committee of Experts on International Cooperation in Tax Matters.119

Without reaching the higher demands of inserting anticorruption clauses in trade or comprehensive agreements,120 which I have defended in other places as it could facilitate the enforcement of anticorruption norms by interested parties,121 it is possible for UN organs to address some very relevant issues, in the trade context, especially if they are beyond the scope of other organisations. One possible example of an area where international intervention can generate spectacular returns if successful, is corruption in customs processes.122

Generally, customs processes are regulated domestically with some degree of global coordination promoted in the context of the World Customs Organization (wco). Stronger harmonisation takes place when several countries join a free trade agreement or an economic integration area. However, in the absence of this trade arrangements, the disparity among custom procedures, even across neighbouring countries, create an environment where public authorities can exercise excessive discretion and individual officials easily extort bribes. Voluntary coordination of norms among countries and the development of compatible automatised systems of customs clearance can be promoted by the UN regional economic commissions. For example, the Economic Commission for Africa (eca) has been a driving force to set the building blocks of the African Continental Free Trade Area (acfta), notably through the development of national strategies in preparation for its incorporation in domestic legislation and frameworks.123 In this context, the eca could promote customs coordination and automatization as a self-standing line of work, which would contribute to the mitigation of corruption regardless of the progress of this process in the acfta context.

Furthermore, given the limited work of the World Trade Organisation in this domain,124 this could also serve as a reinvigoration for the United Nations Conference on Trade and Development (unctad), which could fill the wider vacuum existing today in the area of international economic law and corruption. The unctad is in a privileged position in this domain as it will have the legitimacy of serving the objectives of the uncac, while pushing the benefits of fighting corruption from a trade and development angle. One area of particular expertise for unctad is investment agreements, where there is a wide scope of intervention to use them to fight corruption.125 Finally, unctad could also serve as a coordinator for the work of other agencies and organisations as it already does to some extent in the Financing for Development initiative with the World Bank, the International Monetary Fund, the World Trade Organization, and the United Nations Development Programme.

6.3 Enhanced Monitoring through an Optional Protocol to the uncac

Finally, one can envisage an optional protocol modelled on the human rights systems, in which a more permanent body (alike to the different human rights committees of the UN Human Rights Treaties) can initiate inquiries.126 Although the experience of inquiries in some human rights treaties may not be very promising,127 it may be a good compromise to enhance monitoring of uncac between more active and more reluctuant signatories. This idea has a much more limited scope than complex theories and mechanisms developed by other authors about possible protocols to the uncac,128 some even suggesting the creation of international quasi-criminal courts to monitor the Convention and fight kleptocracy,129 in line with the criminal individual sanctions discussed above.

This narrower model of enhanced monitoring is perhaps what the facti panel had in mind in recommendation 14D, ‘[d]esign a mechanism to integrate the uncac CoSP into the coordination body under the auspices of ecosoc’.130 Although some have not been able to understand the meaning of the recommendation,131 it seems reasonable to think that the Panel, not wanting to suggest the creation of an optional protocol – something well beyond its mandate – opted instead to suggest a workaround through the establishment of a working procedure between the existing CoSP and the administrative support of the Economic and Social Council. That would make sense of the recommendation that the CoSP ‘needs to coordinate action with other bodies working in the financial integrity ecosystem, which should happen through the ecosoc coordination mechanism’ to, among others ‘consider violations of the uncac, […] including failures to enforce anti-corruption policies and to cooperate on the return of assets’.132

Inquiries by UN committees are not complaint-based procedures. Although only sporadically used since their establishment for the first time in the Convention Against Torture in 1984 in the body of the convention (Article 20), they grant UN bodies the right to collect information regarding a practice in one of the Parties with the purpose of establishing the facts on the ground and assessing whether those situations violate the obligations under the relevant treaty, with no restrictions on the sources of information.133 Committees can also issue recommendations on how to address those identified shortcomings, placing a country on the spotlight. In that sense, it would be possible to accommodate this procedure within the current ecosoc system as suggested by the facti panel. However, this approach would not be very transparent for States, which would be subjected to a system of enhanced monitoring that they did not formally accept.

Such an optional protocol need not incorporate a system of inter-State complaints, as the uncac already envisages the jurisdiction of the International Court of Justice to solve any disputes that may arise from the implementation of the treaty (Article 66). Contrarily, if the UN were to promote an optional protocol to the uncac, it could even envisage a system of individual complaints or communications, also following the model of the human rights mechanisms. In that case, as the damage caused by corruption and the lack of implementation of the obligations derived from the uncac tend to be more difused than violations of human rights, a complaint mechanism would need to be adapted. At least, it would be necessary to allow civil society organisations to submit complaints, diluting then the difference between inquiries and individual complaints. For this reason, a system of inquiries, in which civil society provide the initial evidence that a UN committee could use to open the inquiry (petitioners) seems to be better suited to meet the objectives of the uncac.

7 Conclusion

This article presented the evolution of the anticorruption work at the UN level from its erratic origins, through its explosion in the last 25 years, to the recent disappointment generated by a lacklustre first Special Session of the General Assembly on corruption. One way to view this process is to understand the uncac and the sdg s as the zenith of the UN’s anticorruption initiatives and an invitation to move on to other international fora.

The other way – a more positive way which this article has tried to present – shows the UN anticorruption path as a progressively developing project in which the Special Session is just a minor note. Although I believe the current UN anticorruption initiatives have almost exhausted their shelf life, I do not see that as a problem but an invitation to an organisation which, within its existing powers, has significant potential to take further steps.

Furthermore, one can even see a note of optimism in the Political Declaration as it invites the uncac CoSP to follow up and build on the ungass 2021 declaration and commits the unga to ‘consider holding a follow-up special session of the General Assembly on corruption, as necessary, taking into account the outcome of the follow-up by the Conference’. That ‘as necessary’ seems to be in ten years’ time. Until then, it is the time for academia and policy actors to propose more promising initiatives, for certain States to support the process and for the UN bureaucracy to start developing them. This is the best way to hope for a moment when these new approaches can gain the necessary political support and avoid another missing opportunity in 2031.

1

unga Res 58/4 ‘United Nations Convention against Corruption’ (adopted 31 October 2003, entered into force 14 December 2005).

2

‘Taboo (Sociology)’ in Encyclopedia Britannica, available at https://www.britannica.com/topic/taboo-sociology (accessed 22 September 2021).

3

J. Brademas and F. Heimann, ‘Tackling International Corruption: No Longer Taboo’ (1998) 77(5) Foreign 17.

4

P. Glynn, S.J. Kobrin and M. Naím, ‘The Globalization of Corruption’ in K.A. Elliot (ed.), Corruption and the Global Economy (Institute for International Economics Washington 1997), at 7.

5

J.M. Bello y Villarino, ‘International Anticorruption Law: Revisited’ (2022) 63(2) Harvard International Law Journal (forthcoming).

6

M. Naím, ‘The Corruption Eruption’ (1995) 2(2) The Brown Journal of World Affairs 245, at 245–47.

7

In contrast, for example, to the attention given to terrorism in international affairs after 2001.

8

F. Fukuyama, ‘Corruption as a Political Phenomenon’ in K. Basu and T. Cordella (eds), Institutions, Governance and the Control of Corruption (Springer 2018), at 52.

9

M. Stephenson, ‘Honey and Poison: On Corruption – Liberties’ (2021) Liberties – A Journal of Culture and Politics.

10

P. M. Heywood, Routledge Handbook of Political Corruption (Routledge 2014), at 2–3.

11

The boundaries of this anticorruption industry differ, but generally encompass international ngo s, international organisations, quangos, global groups of academics and legal practitioners and even some transnational corporations. See B. Michael, ‘The Rapid Rise of the Anticorruption Industry’ (2004) Spring Local Government Brief 17–24; L. de Sousa, B. Hindess and P. Larmour, Governments, NGOs and Anti-Corruption: The New Integrity Warriors (Routledge 2012), at 184; H.K. Hansen and A. Stachowicz-Stanusch, ‘Varieties of Corruption Control: Introduction to Special Issue’ (2013) 60(2) Crime, Law and Social Change 115; S. Sampson, ‘The Anti-Corruption Industry: From Movement to Institution’ (2010) 11(2) Global Crime 263.

12

Fukuyama, ‘Corruption as a Political Phenomenon’, at 51. His point is illustrated with the example that, in our time, the majority of nations accept the legitimacy of democracy, and, at a minimum, pretend to hold competitive elections which, he believes, were the defining issues of the previous century.

13

unga Res 3514 (xxx) ‘Measures against Corrupt Practices of Transnational and Other Corporations, Their Intermediaries and Others Involved’ (15 December 1975).

14

G. E. Caiden, ‘A Checkered History of Combating Official Corruption’ (2013) 2 Asian Education and Development Studies 102.

15

UN ecosoc Res 1721(liii) (28 July 1972) escor [1972] 53rd Session Supp 1.

16

H.L. Brown, ‘Extraterritorial Jurisdiction under the 1998 Amendments to the Foreign Corrupt Practices Act: Does the Government’s Reach Now Exceed Its Grasp’ (2001) 26 North Carolina Journal of International Law and Commercial Regulation 262.

17

United States Congress ‘Foreign Corrupt Practices Act’ (19 December 1977) 15 U.S.C. § 78dd-1.

18

A. Posadas, ‘Combating Corruption under International Law’ (1999–2000) 10 Duke Journal of Comparative & International Law 366.

19

J. Wouters, C. Ryngaert and A.S. Cloots, ‘The International Legal Framework against Corruption: Achievements and Challenges’ (2013) 14 Melbourne Journal of International Law 6.

20

J.M. Bello y Villarino, ‘Unsustainable Finance: Targeting Corruption Linked to Investments through International Agreements’ (2020) 3rd Annual Conference – Global Research Alliance for Sustainable Finance and Investment.

21

J.D. Wolfensohn, ‘People and Development: Annual Meetings’ (1 October 1996) World Bank.

22

Inter-American Convention against Corruption (done 29 March 1996, entered into force 6 March 1997) 35 ilm 724.

23

The Yearbook of the United Nations [1976] Chapter 11: Questions Concerning Transnational Corporations, at 460.

24

D. Hough, Analysing Corruption: An Introduction (Agenda Publishing 2017), at 108.

25

Posadas, ‘Combating Corruption under International Law’, at 371; United Nations Office for Drugs and Crime, ‘Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention Against Corruption’ (United Nations 2010), at xiiixx.

26

Ibid., at xvii.

27

Hough, Analysing Corruption, at 109.

28

E. Katzarova, The Social Construction of Global Corruption: From Utopia to Neoliberalism, Political Corruption and Governance (Palgrave Macmillan 2019), at 231–32.

29

The World Bank ‘since its very inception [has been involved] in the business of improving governance’, see J.F. Linn, ‘The World Bank’s New Approach to Good Governance: Promises and Risks’ (2001) The World Bank Transition Newsletter, at 2.

30

oecd ‘Convention on Combating Bribery of Foreign Public Officials in International Business Transactions’ (adopted 21 November 1997, entered into force 15 February 1999) (1998) 37 ilm 1.

31

unga Res 51/59 ‘Action against Corruption’ (28 January 1997).

32

unga Res 51/191 ‘United Nations Declaration against Corruption and Bribery in International Commercial Transactions’ (21 February 1997).

33

S. Holmberg and B. Rothstein, Good Government: The Relevance of Political Science (Edward Elgar Publishing 2012), at 174.

34

Caiden, ‘A Checkered History of Combating Official Corruption’, at 103.

35

C. Rose, International Anti-Corruption Norms: Their Creation and Influence on Domestic Legal Systems (oup 2015), at 3.

36

unga ‘Report of the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime’ (17–28 January 2000) UN Doc. a/ac.254/23.

37

unga ‘Records of the Third Committee’ 55th Session 81st Plenary Meeting’ (4 December 2000) UN Doc. A/55/pv.81.

38

C. Rose, M. Kubiciel and O. Landwehr, The United Nations Convention Against Corruption: A Commentary (oup 2019), at 2.

39

unga Res 58/4 ‘United Nations Convention against Corruption’ (adopted 31 October 2003, entered into force 14 December 2005), at foreword of K.A. Annan to the unodc Edition.

40

P. Webb, ‘The United Nations Convention Against Corruption. Global Achievement or Missed Opportunity?’ (2005) 8(1) Journal of International Economic Law 36.

41

Independent Inquiry Committee into the United Nations Oil-for-Food Programme ‘The Management of the Oil-for-Food Programme’ (September 2005).

42

L. Johns, ‘Depth versus Rigidity in the Design of International Trade Agreements’ (2014) 26(3) Journal of Theoretical Politics 26, at 468–95.

43

Rose, Kubiciel and Landwehr, The United Nations Convention Against Corruption, at 1.

44

unga Res 58/4 ‘United Nations Convention against Corruption’ (adopted 31 October 2003, entered into force 14 December 2005) foreword of K.A. Annan to the unodc Edition, at iii.

45

Ibid.

46

H. Hechler, ‘UNCAC in a Nutshell’ (2017) U4 Anti-Corruption Resource Centre.

47

Rose, Kubiciel and Landwehr, The United Nations Convention Against Corruption, at 2–3.

48

A. K. Weilert, ‘United Nations Convention against Corruption (UNCAC) – After Ten Years of Being in Force’ (2016) 19 (1) Max Planck Yearbook of United Nations Law Online, at 239. When regional organisations drafted their conventions having a distinct regional view is both an objective and an advantage.

49

O. Brunelle-Quraishi, ‘Assessing the Relevancy and Efficacy of the United Nations Convention against Corruption: A Comparative Analysis’ (2011) 2(1) Notre Dame Journal of International and Comparative Law 150.

50

Rose, International Anti-Corruption Norms, at 99.

51

Bello distinguishes three types of rules in the uncac: (i) mandatory provisions, i.e., obligations to legislate; (ii) measures to consider applying or endeavour to adopt; and (iii) optional measures. See A.O. Bello, ‘United Nations and African Union Conventions on Corruption and Anti-Corruption Legislations in Nigeria: A Comparative Analysis’ (2014) African Journal of International and Comparative Law 22(2), at 310.

52

Rose, Kubiciel, and Landwehr, The United Nations Convention Against Corruption, at 1.

53

A. Doig, ‘Time for UNCAC Mark ii?’ (2021) The Global Anticorruption Blog.

54

Weilert, ‘United Nations Convention against Corruption (UNCAC) – After Ten Years of Being in Force’, at 239.

55

H. Hechler et al., ‘Can UNCAC Address Grand Corruption?’ (2011) U4 Report 2011(2), at vi.

56

Brunelle-Quraishi, ‘Assessing the Relevancy and Efficacy of the United Nations Convention against Corruption’, at 164–65.

57

Weilert, ‘United Nations Convention against Corruption (UNCAC) – After Ten Years of Being in Force’, at 239.

58

K.E. Davis, Between Impunity and Imperialism: The Regulation of Transnational Bribery (oup 2019), at 58.

59

Rose, International Anti-Corruption Norms, at 99.

60

United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Corruption (United Nations 2010), at 555.

61

Conference of State Parties to the United Nations Convention against Corruption Resolution 3/1 ‘Review Mechanism’ (9–13 November 2009), at 1.

62

Caiden, ‘A Checkered History of Combating Official Corruption’, at 103–104.

63

Conference of State Parties to the United Nations Convention against Corruption Resolution 3/1 ‘Review Mechanism’, at paras 3–4.

64

P. Webb and O. Landwehr, ‘Mechanisms for Implementation’ in Rose, Kubiciel and Landwehr (eds), The United Nations Convention Against Corruption: A Commentary (oup 2019), at 637.

65

Rose, International Anti-Corruption Norms, at 105.

66

A. Martin, ‘Implementation as the Best Way to Tackle Corruption: A Study of the UNCAC and the AUC 2003’ (2011) ssrn Scholarly Paper, at 10.

67

Rose, International Anti-Corruption Norms, at 98.

68

Hechler et al., ‘Can UNCAC Address Grand Corruption?’.

69

Caiden, ‘A Checkered History of Combating Official Corruption’, at 105.

70

J.G. Lambsdorff, ‘How Corruption Affects Economic Development’ (2004) 310 Global Corruption Report 212; Y. Jong-sung and S. Khagram, ‘A Comparative Study of Inequality and Corruption’ (2005) 70(1) American Sociological Review.

71

J.D. Sachs, ‘From Millennium Development Goals to Sustainable Development Goals’ (2012) 379 (9832) The Lancet 2206.

72

M. Nilsson, D. Griggs and M. Visbeck, ‘Map the Interactions between Sustainable Development Goals’ (2016) 53 (7607) Comment in Nature.

73

unga Res 70/1 ‘Transforming Our World : The 2030 Agenda for Sustainable Development’ (21 October 2015), at 16.

74

Ibid., at 16.5.

75

The Economic and Social Committee of the UN took note of the Commission’s report, which included the global indicator framework, at its 70th Session in June 2016, establishing the way to track progress for the sdg s for the coming years. Secretary General of the United Nations, ‘Progress towards the Sustainable Development Goals’ (5 November 2017), at para. 1.

76

UN ecosoc Statistical Commission ‘Report on the 48th Session’ (7–10 March 2017) UN Doc. E/cn.3/2017/35.

77

C. Kenny, ‘Measuring and Reducing the Impact of Corruption in Infrastructure’ (2006) World Bank Policy Research Working Paper.

78

R. Sanyal and S. Samanta, ‘Relationship between Bribery and Economic Growth: An Empirical Analysis’ (2010) 9(1) Indian Journal of Economics and Business, at 133.

79

UN ecosoc ‘Report of the Secretary-General – Progress towards the Sustainable Development Goals’ (30 April 2021) UN Doc. E/2021/58, at para. 173. The other observation about bribery in the report, i.e., that data from ‘countries and territories surveyed between 2006 and 2020 indicate that almost one business in six around the world is subject to requests from public officials for bribe payments’, does not seem to justify tracking that data either (at para. 175).

80

G. Locatelli et al., ‘Corruption in Public Projects and Megaprojects: There Is an Elephant in the Room!’ (2017) 35(3) International Journal of Project Management, at 52–68, discuss, for example, the risk of corruption in procurement of megaprojects as a global problem.

81

M. Fazekas, I.J. Tóth and L.P. King ‘An Objective Corruption Risk Index Using Public Procurement Data’ (2016) 22(3) European Journal on Criminal Policy and Research 395, at 396.

82

‘Corruption Perceptions Index 2017’ (21 February 2018) Transparency International, available at https://www.transparency.org/en/news/corruption-perceptions-index-2017 (accessed 31 March 2022).

83

Financial Accountability, Transparency & Integrity ‘Financial Integrity for Sustainable Development: Report of the High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda’ (February 2021).

84

For a qualified commentary, see M. Stephenson, ‘Commentary on the FACTI Panel’s Report and Recommendations (Part 1)’ (2021) The Global Anticorruption Blog; M. Stephenson, ‘Commentary on the FACTI Panel’s Report and Recommendations (Part 2)’ (2021) The Global Anticorruption Blog; and the reply of one of the members of the panel in the same blog, see B. Owasanoye, ‘A Response to Commentary on the FACTI Panel Report and Recommendations’ (2021) The Global Anticorruption Blog.

85

They can be found in the website, available at https://www.factipanel.org/documents (accessed 31 March 2022).

86

unga Res 73/191 ‘Special Session of the General Assembly against Corruption’ (17 December 2018).

87

Ibid., at paras 3–4.

88

uncac CoSP ‘Draft Resolution to Be Recommended by the Conference of the States Parties to the United Nations Convention against Corruption for Adoption by the General Assembly as a Draft Resolution Special Session of the General Assembly against Corruption’ (December 2019).

89

Ibid., at para. 13.

90

unga Res S-32/1 ‘Our Common Commitment to Effectively Addressing Challenges and Implementing Measures to Prevent and Combat Corruption and Strengthen International Cooperation’ (28 May 2021).

91

Ibid., at para. 16.

92

J.M. Bello y Villarino, ‘Women in Anticorruption Laws: The Case for More Gender-Responsive International Treaties’ in R. Vijeyarasa (ed.), International Women’s Rights and Gender Equality: Making the Law Work for Women (Routledge 2021), at 149–66.

93

United Nations, ‘The UN Common Position to Address Global Corruption – Towards UNGASS 2021’ (August 2020).

94

United Nations the President of the General Assembly ‘High-Level Supporting Event of the President of the General Assembly on the Margins of the Special Session of the UN General Assembly Programme’ (3 June 2021).

95

A full list is available at https://ungass2021.unodc.org/ungass2021/side-events_2-june.html (accessed 31 March 2022).

96

G. Dell, ‘UNGASS 2021 Ignores the Grand Corruption Elephant but Creates a Pathway to Improve the International Framework’ (14 June 2021) Transparency International.

97

J.M. Bello y Villarino, ‘Will the Anticorruption Chapter in the TPP11 Work? Assessing the Role of Trade Law in the Fight against Corruption through International Law’ (2020) 2018 New Zealand Yearbook of International Law, at 39–75.

98

I. Bantekas, ‘Corruption as an International Crime and Crime against Humanity: An Outline of Supplementary Criminal Justice Policies’ (2006) 4(3) Journal of International Criminal Justice, at 466–84.

99

M. Boersma, Corruption: A Violation of Human Rights and a Crime Under International Law? (Intersentia 2012); M.L. Wolf, ‘The World Needs an International Anti-Corruption Court’ (2018) 147(3) Daedalus, at 144–56.

100

M. Stephenson and S.A. Schütte, ‘An International Anti-Corruption Court? A Synopsis of the Debate’ (2019) U4 Anti-Corruption Resource Centre.

101

A. Moiseienko, Corruption and Targeted Sanctions: Law and Policy of Anti-Corruption Entry Bans, Corruption and Targeted Sanctions (Brill Nijhoff 2019).

102

See the reference in the G20 ‘Leaders Declaration’ G2012 Los Cabos Mexico (18–19 June 2012).

103

apec Course of Action on Fighting Corruption and Ensuring Transparency (17–18 November 2004).

104

A. Moiseienko, ‘“No Safe Haven”: Denying Entry to the Corrupt as a New Anti-Corruption Policy’ (2015) 18(4) Journal of Money Laundering Control, at 400–10; Moiseienko, Corruption and Targeted Sanctions.

105

Dell, ‘UNGASS 2021 Ignores the Grand Corruption Elephant but Creates a Pathway to Improve the International Framework’.

106

E. Rosand, ‘Security Council Resolution 1373, the Counter-Terrorism Committee, and the Fight against Terrorism’ (2003) 97(2) The American Journal of International Law, at 333–41.

107

R. Uruena, ‘International Law as Administration: The UN’s 1267 Sanctions Committee and the Making of the War on Terror’ (2008) 4(2) International Organizations Law Review, at 321–42.

108

See, for example, J.R. Vreeland and A. Dreher, The Political Economy of the United Nations Security Council: Money and Influence (cup 2014).

109

E. Stein and D. Halberstam, ‘The United Nations; the European Union; and the King of Sweden; Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46(1) Common Market Law Review, at 13–72.

110

E. Chachko, ‘Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence’ (2019) 44(1) Yale Journal of International Law 5.

111

See the relevant legislation and its use in United States Congress ‘Global Magnitsky Human Rights Accountability Act’ (23 December 2016) 22 usc 2656; United States Executive Office of the President ‘Executive Order 13818 Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption’ (20 December 2017) 82 fr 60839; ‘United States Sanctions Human Rights Abusers and Corrupt Actors Across the Globe’ (21 December 2017) United States Department of the Treasury.

112

Chachko, ‘Foreign Affairs in Court’, at 14–15.

113

Joined Cases C–402/05 P and C–415/05 P Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities [2008] ecr i-6351.

114

Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Commission and Others v Kadi [2013] eu:c:2013:518.

115

P. Mauro ‘Corruption and Growth’ (1995) 110(3) The Quarterly Journal of Economics, at 681–712.

116

S.-J. Wei, ‘How Taxing Is Corruption on International Investors?’ (2000) 82(1) The Review of Economics and Statistics, at 1–11.

117

S. Gil-Pareja, R. Llorca-Vivero and J.A. Martínez-Serrano, ‘Corruption and International Trade: A Comprehensive Analysis with Gravity’ (2019) 27(79) Applied Economic Analysis, at 3–20.

118

Gil-Pareja, Llorca-Vivero, and Martínez-Serrano, 4 references ommitted.

119

United Nations Tax Committee ‘Practices and Working Methods for the Committee of Experts on International Cooperation in Tax Matters’ (2020).

120

L. Chang-fa, ‘Anti-Corruption Provisions in the TPP: Innovation, Effectiveness and Prospects’ in J. Chaisse, H. Gao and L. Chang-fa (eds), Paradigm Shift in International Economic Law Rule-Making: TPP as a New Model for Trade Agreements? (Springer Singapore 2017), at 205–21.

121

Bello y Villarino, ‘Will the Anticorruption Chapter in the TPP11 Work? Assessing the Role of Trade Law in the Fight against Corruption through International Law’.

122

A very damaging and sticky problem, as noted in I. Hors, ‘Fighting Corruption in Customs Administration: What Can We Learn from Recent Experiences?’ (2001) oecd Development Centre Working Papers.

123

UN ecosoc ‘Summary of the Work of the Economic Commission for Africa, 2019–2020’ (6 May 2020) UN Doc. E/2020/38, at para. 15.

124

Very limited beyond some provisions in the 2012 review of the Global Procurement Agreement. See World Trade Organization ‘Revised Agreement on Government Procurement’ (30 March 2012); and the commentary in L. Chang-fa, ‘Anti-Corruption Provisions in the New GPA’ (2016) Trade, Law and Development 7(1), at 21–41.

125

Bello y Villarino, ‘Unsustainable Finance: Targeting Corruption Linked to Investments through International Agreements’.

126

See, for example, the record of the inquiries initiated by the Security Council, the General Assembly, the Human Rights Council – its predecessor – the Commission on Human Rights, the UN Secretary-General and the UN High Commissioner for Human Rights, ‘International Commissions of Inquiry, Fact-Finding Missions: Home’, United Nations Research Guides.

127

C. O’Rourke, ‘Bridging the Enforcement Gap – Evaluating the Inquiry Procedure of the Cedaw Optional Protocol’ (2019) 27(1) American University Journal of Gender, Social Policy & the Law, at 11–13.

128

S.S. Yeh, ‘APUNCAC and the International Anti-Corruption Court (IACC)’ (2021) 10(1) Laws, at 1.

129

Leaving aside here broader proposals for International Anticorruption Courts, as proposed by Boersma, Corruption; or Wolf, ‘The World Needs an International Anti-Corruption Court’.

130

Financial Accountability, Transparency & Integrity ‘Financial Integrity for Sustainable Development: Report of the High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda’ (February 2021).

131

Stephenson, ‘Commentary on the FACTI Panel’s Report and Recommendations (Part 2)’.

132

Financial Accountability, Transparency & Integrity ‘Financial Integrity for Sustainable Development: Report of the High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda’, at Recommendation 14D.

133

R. Nigel, ‘The Role and Impact of Treaty Bodies’ in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (oup 2013), at 636.

Acknowledgements

This article was completed with the support of a Fulbright-Schuman grant at the Harvard Law School, and a University of Sydney Walter Reid Scholarship. I would like to particularly thank the anonymous reviewers and the editorial team for their suggestions in the final part of this paper. The views presented on this paper only represent the author’s.

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