When Experts and Diplomats Agree: Negotiating Peer Review of the UN Convention against Corruption
Joutsen, Matti, Graycar, Adam, Global Governance
The UN Convention Against Corruption is the only truly global convention in corruption control. Separate and rather difficult negotiations were conducted on a mechanism for the implementation of the treaty. These negotiations broke ground by providing, for the first time, peer review of a United Nations treaty. This article, which is based on the authors' close observations and interviews with key participants, seeks to show how the dynamics between technical experts and diplomats led to a resolution that would not have occurred if either the technical experts or the diplomats had acted alone. KEYWORDS: corruption, peer review, United Nations, negotiation impasse, experts, diplomats.
THE UN CONVENTION AGAINST CORRUPTION (UNCAC) ENTERED INTO force in 2005. (1) As of February 2012, it had been ratified by 159 states parties, making it the only truly global convention on the prevention and control of corruption. (2) As such, it allows for cooperation between industrialized and developing countries as well as South-South cooperation. It therefore can assist countries that have extensive corruption in developing an anticorruption framework. It also offers a comprehensive framework that may help them to receive targeted technical assistance. Additionally, UNCAC can provide a framework for bringing pressure to bear on countries that have so far chosen to retain a hands-off policy toward corrupt practices in international trade and development.
UNCAC contains both mandatory and nonmandatory provisions. Among the mandatory provisions ("each State Party shall ...") are those requiring the criminalization of active and passive bribery, embezzlement by a public official, and money laundering. There also are several mandatory provisions on extradition and mutual legal assistance. States parties are obliged, for example, to "afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences" covered by UNCAC. (3) Given the fact that klepto-cratic officials have siphoned off billions of dollars from developing countries, and that large sums of money have been transferred to bank accounts abroad, (4) it is not surprising that developing countries have worked to ensure that many of the provisions on asset recovery are mandatory.
However, the impact of UNCAC is potentially weakened by the fact that it is not self-executing. Each state party has to take domestic action (legislation, policy formulation, allocation of resources) in order to implement the provisions of UNCAC, both mandatory and nonmandatory. While the objectives of UNCAC are specified throughout the treaty, agreement could not be reached (with one exception) during the negotiation phase on how to review this implementation, on how the states parties could ascertain that implementation in their own country and elsewhere was on track and in line with the objectives, and on how that success was in fact being achieved.
The one exception is Article 63 of UNCAC, which simply provides for a Conference of States Parties (CoSP) that is to "promote and review" implementation of UNCAC. However, the CoSP meets for only five days biennially. It does not have the capacity to collect and analyze information on implementation. The CoSP realized quite quickly that a supplementary review mechanism is needed to do this work and prepare recommendations for the CoSP.
Peer review offers one tried-and-true supplementary review mechanism. (5) The review of the implementation of the recent anticorruption treaties prepared by the Council of Europe and the Organisation for Economic Co-operation and Development (OECD) has shown that direct consultations among experts doing an on-the-ground review provide an effective learning experience. (6) Talking with experts from other systems often helps experts understand their own system better and realize that there are other--and perhaps more effective--ways to deal with an issue. …