Proposed United Nations Instrument against Corruption

Consultation Document - July 2001

Foreword

Corruption has become an issue of increasing global concern, and Canada is playing an active role in international efforts to address the problem. Recently, the United Nations has proposed the development of a new global legal instrument against corruption. The Government of Canada supports this idea, believing that it could hold promise for advancing good governance, democracy, the rule of law, human rights, and economic and sustainable development, and for bringing about greater stability and security in the world. However, the details of the proposed new UN instrument have yet to be determined; the actual negotiations are not expected to take place until early 2002. The Government is therefore taking this opportunity to consult Canadians on such issues as the scope of the instrument so their views may be taken into consideration in preparing Canada’s position.

The following pages summarize the background and context of the new UN proposal and provide a brief discussion of some of the issues involved, followed by specific questions for consultation.

In the coming months, the Internet sites of the Department of Foreign Affairs and International Trade and the Department of Justice will provide supplementary information on developments relevant to the proposed new UN instrument. Further consultation questions may also be posted on the sites should any arise before or during the negotiations.

International Efforts Against Corruption

Corruption is a serious problem. It knows no geographical boundaries and affects all countries: developed countries, countries with economies in transition, and developing countries. Its impact can be devastating. Corruption can undermine good governance; threaten the rule of law, democracy and human rights; assist organized crime; distort international trade; and impede economic and sustainable development.

Initiatives to combat corruption are ongoing in such international forums as the United Nations, the Organization of American States, the Organisation for Economic Co-operation and Development (OECD), the World Customs Organisation, the Organization for Security and Cooperation in Europe, the Council of Europe, the Commonwealth, and the Group of Eight. These efforts may involve the exchange of information, the promotion of best practices, and the development of international recommendations and international law to enhance national anti-corruption programs and foster international co-operation and technical assistance in this field.

Canada regularly and actively participates in such initiatives. For example, in 1998 Canada ratified the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions . The Convention endeavours to prevent bribery in international business transactions by requiring countries to create the criminal offence of bribing a foreign public official and to provide for adequate sanctions and reliable means for detection and enforcement. Indeed, it was Canada’s ratification of the Convention that triggered its coming into force on February 15, 1999.

Similarly, on June 6, 2000, Canada ratified the Inter-American Convention against Corruption, which seeks to promote and strengthen mechanisms within states parties to prevent, detect, punish and eradicate corruption, and to promote, facilitate and regulate cooperation in this effort. Six months later (December 14), Canada signed the United Nations Convention against Transnational Organized Crime , which includes some limited criminal law and other measures against corruption.

Contributing to international anti-corruption activities enhances the three key objectives in Canadian foreign policy: the promotion of prosperity and employment; the protection of our society within a stable global framework; and the projection abroad of Canadian values and culture.

A New United Nations Legal Instrument Against Corruption

Context

The "Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century," issued at the Tenth UN Congress on the Prevention of Crime and the Treatment of Offenders (April 10-17, 2000), called for a new tool in the fight against corruption. The Declaration stressed the urgent need to develop, under the auspices of the United Nations, a new, effective international legal instrument against corruption that would be distinct from the United Nations Convention against Transnational Organized Crime. This call was echoed by member states at the ninth session of the United Nations Commission on Crime Prevention and Criminal Justice, which immediately followed (April 18-20, 2000).

In response, the United Nations General Assembly adopted resolution 55/61 (December 4, 2000), requesting the Secretary General to prepare a report analyzing relevant international legal instruments and other documents and recommendations addressing corruption, for consideration at the Crime Prevention and Criminal Justice Commission’s tenth session. The General Assembly also asked the Secretary General to convene an intergovernmental open-ended group of experts from UN member states to prepare draft terms of reference for the negotiation of the future legal instrument against corruption. In addition, in resolution 55/188 (December 20, 2000), the General Assembly proposed that the group of experts examine the question of illegally transferred funds and the repatriation of such funds to the countries of origin.

Accordingly, the Crime Prevention Commission’s tenth session (Vienna, May 8-17, 2001) addressed the theme "Progress made in the global action against corruption" and considered the Secretary General’s Report. The Commission agreed that the group of experts would meet in Vienna, July 30 - August 3, 2001, to consider possible items for the draft terms of reference, including strengthening international cooperation in preventing and combating the transfer of funds of illicit origin and promoting ways and means to be able to enable the return of such funds.

The group of experts is expected to present its report when the tenth session of the Commission resumes, September 6-7, 2001. The draft terms of reference would then be forwarded to the General Assembly for adoption before the end of the year. An ad hoc committee for the negotiation of the United Nations instrument against corruption will be established once the draft terms of reference are adopted, and the negotiation will probably commence early in 2002.

The proposal received further support from the Global Forum on Fighting Corruption and Safeguarding Integrity II (held in The Hague, May 28-31, 2001). The Global Forum was a government-organized meeting that focussed on government commitments. The Forum’s Final Declaration encouraged participants in the negotiations of the new UN instrument to take into account the results of the Global Forum process.

The scope of the future United Nations instrument against corruption is also expected to be a priority topic at the 10th Annual International Anti-Corruption Conference, to be held in Prague, October 7-11, 2001. This Conference will focus on concrete anti-corruption strategies and on methods of evaluating their success. Delegates to the Conference will include government representatives, as well as persons from the private sector, the media, professional groups, academia, the development community and from civil society organizations.

Issues

While the United Nations has agreed that an effective international legal instrument against corruption would be valuable, the nature and scope of that instrument and the timetable for its completion remain to be determined.

A basic issue, for instance, is whether it should be an international convention (or treaty) that would be legally binding on states that ratify it, or whether it should be a resolution or declaration that would not be legally binding.

Similarly, concerning scope, questions abound as to whether the future instrument should be approached as an issue of good governance or a crime problem or both. Once the basic approach is decided on, the next question is what elements it should include. This will likely be determined as part of the draft terms of reference in advance of the actual negotiations of the instrument.

The approach favoured to this point by the Government of Canada is the negotiation of a legally binding United Nations Convention against Corruption that would include criminal law measures as well as measures to promote good governance and an effective means of monitoring implementation.

Criminal law measures, for instance, could cover offences - to be established by states, where necessary - to address domestic bribery and the bribery of foreign public officials in international business transactions; and if these offences were included, it would make sense for the possession and laundering of the proceeds to be made criminal offences as well. Provisions relating to international cooperation (e.g. mutual legal assistance and extradition) would also be advisable.

Measures to promote good governance (including preventive measures) could be wide-ranging. They could highlight, for example, the importance of auditing procedures applicable to public administration and the public sector, access-to-information legislation, a free and independent news media, and accountability in corporate governance. Existing conventions and other international instruments and documents contain abundant examples of measures of this sort.

Finally, provisions to monitor the implementation of the instrument - in a way appropriate in the context of the United Nations - would help ensure it is effective. Similarly, technical assistance to developing countries and countries with economies in transition to support implementation is another possible element to be considered.

The Government of Canada believes that the United Nations instrument should be seen as a basic and achievable goal for countries serious about overcoming corruption problems. It should combine practical guidance with meaningful, binding commitments to taking steps that will effectively reduce corruption and promote good governance. It should set minimum global standards that integrate well with regional standards already established in other international forums so it will attract the widest possible support. In Canada, there exists a wide variety of measures designed to counter corruption and promote integrity.

Consultation Questions

Nature

• Should the forthcoming United Nations instrument against corruption take the form of a legally binding convention or treaty, or should it not be legally binding?

Scope

• Should the instrument include requirements for states to have in place particular criminal offences and related measures, together with non-criminal, good governance measures? Or should it be more narrowly focused, and if so, how?

Contents

• If criminal law and related measures are to be included in the instrument, what specific measures should be considered? Of these measures, which would be most important, and why?
• If measures for promoting good governance are to be included in the instrument, what specific measures of good governance should be considered? Of these measures, which would be most important, and why?
• Should countries be able to select which good governance measures to adopt, according to their particular circumstances, or should some or all of these measures be compulsory? If there should be compulsory measures, which ones should these be, and why?

Follow-up

• What kind of follow-up and/or monitoring of the instrument would you like to see?

Government of Canada activities

• Do you agree with the preliminary views of the Government of Canada?
• Do you have any comments or concerns about Canada’s international activities in relation to the issue of corruption?
• Are there any other international anti-corruption activities that you think the Government of Canada should undertake?

Submitting Comments

The Government of Canada would like to know your views on these issues. Any preliminary comments you may wish to make in advance of the meeting of the group of experts on July 30 would be particularly helpful. You or your organization would still be welcome to provide further comments at a later date.

Please feel free to distribute this consultation document to any interested parties.

Please send written submissions, no later than November 15, 2001, to:

United Nations Instrument against Corruption Consultation
International Crime Division (AGC)
Department of Foreign Affairs and International Trade
Lester B. Pearson Building
125 Sussex Drive
Ottawa, Ontario
KlA 0G2
(Fax. (613) 944-4827)

N.B. This consultation document can be viewed at the Department of Justice internet site.

July 2001