Is UNCAC effective enough or a “Toothless Tiger” or are National States not doing enough to effectively implement it?

Introduction

According to the report by United Nations Office on Drugs and Crime (UNODC), the United Nations Convention against Corruption (UNCAC) is the only legally bounded instrument in the world that fights against corruption in the global context. It is an anti-corruption treaty negotiated by the member countries of the United Nations (UN) and is largely promoted by the UNODC. In this context, the member nations of the UN agreed on the implementation of several anti-corruption measures in their respective political regions. There are certain areas based upon which the anti-corruption measures are agreed and correspondingly implemented, which include prevention, international cooperation, law enforcement, asset recovery, along with information exchange and technical assistance. The primary objective of UNCAC is to reduce different forms of corruptions that particularly occur in the international borders of varied nations. These corruptions mainly relate to international trading and abuse of power, money laundering, embezzlement in money, along with corruption in private sector organisations. In addition, the objective of UNCAC is to strengthen judicial co-operation among different nations and reinforce international law enforcement with the support of effective legal bindings. This is eventually to ensure greater international asset recovery. In this regard, the member nations supporting UNCAC attempts to offer all possible resources and assistances so that the goal of the council is adequately achieved.

The report by UNODC further claimed that it is a distinctive instrument, which supports offering an inclusive response to global issues relating to corruption. The report also suggested that the text relating to the convention against corruption was negotiated from January 21, 2002, to October 1, 2003. The key policy-making body of the Convention is the Conference of the States Parties (COSP), which supports the member nations and the signatories to the Council to implement the policy guidelines. The COSP, therefore, forwards the prepared policy guidelines, which is correspondingly implemented by the UNODC and the respective member nations. However, the actual implementation of the policies is executed by the member nations through its integration in the domestic laws. Contextually, although the UNCAC policies are regarded as an effective instrument for reducing global corruption, some of the nations are reluctant to its implementation. There are some of the countries and related analysts that criticise the effectiveness of the policies of UNCAC and in turn reflects its limitations. Considering this as an opportunity to conduct a study helps in critically evaluating the effectiveness of UNCAC in the global context. In addition, the essay also creates a scope to suggest some of the recommendations so that the drawbacks or limitations relating to the policies of UNCAC can be resolved and successfully implemented in every country of the world.

Positives or Strengths of UNCAC

The UNCAC that suggests some of the anti-corruption policies in the global context is widely accepted and appreciated. The acceptance and corresponding implementation of the anti-corruption policies by most of the nations imply of its strengths or positives. In this regard, one of the major strengths of the policies of UNCAC is that it does not define the term corruption, despite the fact that it lists all the criminal offences. Although it is criticised by many of the analysts and government bodies that the absence of the definition of corruption in the policy texts reflects the lack in its inclusiveness, most of the nations claimed it to be its major strength. Many nations hence asserted that the lack of definition of corruption implies avoiding unnecessary details in the policies, which in turn complexes the policies to a large extent. Besides, it is also evaluated that almost all the nations of the world, specifically the member nations of UNCAC are aware of the conception and definition of corruption with respect to every related issue. Hence, the inclusion of corruption definitions for every related issue would lead to its further complexities.

In addition to the above context, the major strengths of the UNCAC policies are reflected from the five main areas of measures and provisions, which include preventive measures, criminalisation and law enforcement, asset recovery, international co-operation, along with information and technical assistance. Besides, the general provisions, a mechanism for implementation along with the final provision mentioned in the policy guideline report also reflect its major strengths in reducing corruption throughout the world in a comprehensive manner. In this regard, chapter 1 of the report suggests the general provisions, which includes 4 articles in all. Thus, it suggests that the statement of purpose of the guidelines, in turn, reflects the understanding on the reason behind implementing the policies, which in turn motivates respective nations for its execution. In addition, it also suggeststhe scope of application along with the protection of sovereignty.

Moreover, the positives of the UNCAC policies are related to anti-corruption and are also apparent from n the detailed discussion of the effective preventive measures. In this regard, all the potential preventive anti-corruption policies and practices habe been adequately discussed herein. It further suggests that all the nations should implement the anti-corruption laws that would ensure effective management of public affairs along with public integrity, accountability, transparency and property. Besides, it bounds nations to implement preventive anti-corruption body, which is linked to the domestic legal system and allocation of sufficient authoritative power, so that the incidents of corruption do not arise. In addition, it largely interferes with the prevention of public sector corruptions. This is regarded to be of major importance, as the corruption in the public sector affects a large number of people, while majority of the individuals are not interested in intervening in public affairs. For addressing a similar issue, the UNCAC policies also suggests the different code of conducts for the public officials, which is deemed to be effective in preventing public corruptions. UNCAC also mentions about the ways of public procurement along with the management of public finances, wherein the maximum corruptions happen. The suggested ways largely support the prevention of corruption in the public affairs. It also mentions the ways of public reporting that improves transparency and in turn reduces corruption. Additionally, the improvement in the judiciary and prosecution services as mentioned in the report also reflects its strength in acting against global corruption. The policy also suggests the preventive measures that would reduce corruption in the private sector with relation to money laundering. It also depicts the role of the society for the purpose of preventing corruption.

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In addition to the above context, the UNCAC policies also detail about the criminalisation and law enforcement with respect to corruption in all areas. The detailed description regarding all the areas of law enforcement reflects its one of the major strengths, which has eventually led to its global acceptance. It mentioned that bribery of national and foreign public officials along with the officials of public international organisations are criminal acts. It also highlighted that embezzlement or misappropriation of property by a public official is a criminal offence. In addition, abuse of functions, influencing trading, illicit enrichment, bribery in the private sector, embezzlement of property in the private sector, laundering in criminal proceedings, concealment, and obstruction of justice are all regarded as a criminal offence, and hence the necessary law enforcement measures should be executed. Moreover, it also details about the liability of every individual, against corruption. It also suggested that the intention reflected by an individual to conduct corruption is a criminal offence. The UNCAC also illustrates the prosecution, adjudication, and sanctions along with freezing of disputed assets that ensures law enforcement effectively. Furthermore, the strength of UNCAC also involves the protection of the reporting person and the witness. It details the consequences regarding the act of corruption by an individual or an organisation along with the compensation that might be incurred for the damage. UNCAC has also been effective by allocating sufficient power to specialised authorities, which attempts to promote co-operation between law enforcement authorities, national authorities, along with the private sector organisations. It also suggests the way to maintain and protect bank secrecy, criminal records, and records of jurisdiction.

UNCAC has another major strength relating to the boosting of international co-operation among different nations, which is particularly necessary for dealing with the corruption issues that associates with the cross-border affairs. In this regard, it binds every member nation of the UNCAC to co-operate with each other for resolving corruption issues. It details about the effective extradition process, transfer of a sentenced person, along with the transfer of criminal proceedings in the international context. It details about the liabilities of each nation towards others for enhancing mutual legal assistance and ensuring law enforcement co-operation. Furthermore, UNCAC binds nations for joint investigations and even for recommending some of the special investigative techniques that would lead to counter corruption amid the respective nations.

UNCAC also suggests effective ways, through which assets can be recovered that are affected by corruption. It further illustrates the manner, in which the illegal transfer of funds, especially by the financial institutions, can be detected and prevented. The measures to be taken for recovering the corrupted properties can be recovered directly in the domestic and international context. Moreover, another positive aspect of UNCAC is that it details with the effective process, through which the confiscation of illegal property can be executed through international co-operation. However, it mentions that the assets should be returned to the owner if he/she correspondingly suffices the legal proceedings. The returning of the assets in the international context is also detailed so that it does not lead to any confusion in the long run. Furthermore, UNCAC also proposes the development of financial intelligence unit along with the improvement in bilateral and multilateral agreements and arrangements.

In addition, the effectiveness of the policies of UNCAC is also apparent from the extensive technical assistance and information exchange it promotes. In this regard, UNODC provides complete training to the representatives of the member nations for gaining complete knowledge on the anti-corruption policies so that it is implemented effectively. It also encourages the respective member nations to offer proper training to all the authorities and representatives that would directly act to implement the policies effectively. Apart from training, it also offers technical assistance to all the individuals related to the implementation of the policies. Furthermore, it supports the effective collection, transfer and evaluation of information on corruption. The effectiveness of UNCAC is also apparent from its detailed mechanism for implementing the policies. In this regard, it arranges a conference of the member nations to encourage them for the successful implementation of the policies. It also attempts to identify the extent to which the member nations have implemented the policies. In addition, UNODC appoints a Secretary-General, whose responsibility is to identify whether the member nations have successfully implemented the policies. The Secretary-General also supports the member nations if they face any issue or difficulty in implementing the policies. Additionally, UNODC ensures settlement of disputes among the member nations relating to the UNCAC policies. It also ensures that the maximum number of nations accepts the policies. Furthermore, if any amendment is needed in the policies, the UNCAC assures that it would execute for its further effectiveness. Thus, it is apparent that the UNCAC policies have a wide range of strengths which ascertains its effectiveness in fighting against corruption.

Limitations or Drawbacks of UNCAC

Although the UNCAC has an extensive range of strengths that deals with every aspect of corruption in a comprehensive way, it is criticised for possessing certain limitations and drawbacks. In this regard, it is identified that the review mechanism of UNCAC has certain limitations, especially relating to the lack of effective follow-up process. It involves no effective formal process, through which the implementation of the policies can be correctly identified. Although it is the role of the General Secretary to identify the implementation of the policies, the information gained from the respective nations is not reliable. Moreover, it involves the lack of transparency and participation at the international level. A considerable number of the member nations are hence reluctant to co-operate with others to mitigate the cross-border corruption issues. Arguably, some of the member nations perceive that the corruption in other countries does not affect them and are hence mostly reluctant to interfere. The limitation of the UNCAC is also apparent from the fact that majority of the member nations are reluctant to share all the corruption information with other countries, as they perceive it to cause a security threat to the respective nation.

In addition to the above constraints of UNCAC, it is notable that the lack of sufficient resources has significantly restricted its successful implementation among different nations, which mainly relates with the lack of proficient human resources and relevant technologies. In this regard, the lack of effective implementation of training to the ground level human resources is regarded as one of the major constraints. Besides, the lack of political will is also a crucial factor that restricts the implementation of UNCAC in some of the nations. Arguably, it is due to the fact that many of the politicians are engaged in corruption, hence any policy implemented relating to UNCAC would directly affect the respective politicians. In addition, one of the major setbacks is that only a few number of the public throughout the world are aware of the UNCAC policies. Hence, there is no pressure from the public on the effective implementation of UNCAC policies. Besides, a few public are only aware of their roles and liabilities towards fighting against corruption. Considering this, the UNCAC policies remained ineffective in its implementation. However, it is also arguable that there are many of the informed stakeholders such as NGOs, University scholars and private sector companies among others, who do not actively participate in implementing the policies effectively.

In addition, Rose mentioned that the major setback for UNCAC in its implementation is with regards to its limited capacity to influence the domestic legal system of the member nations. The UNODC can suggest the importance of implementing UNCAC to the member nations but it cannot guarantee that the countries would execute the policies. In this regard, the UNODC with the help of other nations can pressurise individual or some of the member nations to implement the policies. However, the corresponding execution in the domestic legal system completely depends upon the respective countries. Moreover, Rose also criticised that UNCAC involves a higher number of non-compulsory criminalisation provisions along with some of the vague and imprecise norms. These aspects in the UNCAC fail to influence some of the member nations and the stakeholders towards its implementation. Rose further condemned the UNCAC as a weak provision has little scope for amendment, as it is bound by a multilateral treaty. It further involves qualified and non-mandatory language along with the lack of proper definition or corruption with respect to every related issue. Thus, it is discouraged by its implementation in an effective manner.

Implementation of UNCAC by Different Countries

From the report of UNODC, it is notable that there are 156 parties or member nations, who implemented the policies from 2010 to 2015. Until 2017, a total of 183 nations have been registered as the member parties of UNODC, wherein 140 were the signatories. However, there are some of the nations that have completely avoided the UNCAC policies. Moreover, there are some of the member nations who have not completely implemented the policies or are not as effective in deriving desired outcome from the partially implemented policies. Nevertheless, it is encouraging to note that there are many countries that have successfully implemented the UNCAC policies such as Algeria, Cuba, Al Salvador, Ghana, Jordan, Kuwait, Lao PDR, Panama, Philippines, Russia, Spain, and Switzerland among others. In this regard, the report by UNODC highlighted that Algeria and Russia have been effectively ensuring the law enforcement and criminalisation of the issues, along with maintaining international co-operation. Cuba, on the other hand, is notably effective in reviewing the mechanism of the UNCAC policies. Moreover, El Salvador has gained major success relating to extradition along with the mutual legal assistance. Ghana is considered to be highly successful in structuring legal and institutional framework, thereby reviewing the mechanism, building flexible system for international co-operation. On the other hand, Jordan is regarded as a major inspiration for integrating and harmonising the policies with the national legislation. It has also been effective in integrating the UNCAC policies with the National policies and strategies along with the successful implementation of related technology. Additionally, Switzerland has been successful in recovering illicit assets, which are both from the domestic and international context. The nation has effectively implemented the asset freezing policies as mentioned in UNCAC.

Although there are many nations that have successfully implemented the UNCAC, some of the countries are yet to accept and ratify the convention. These nations include North Korea, Monaco, Chad, Somalia, Tonga, Andorra, Equatorial Guinea, Eritrea, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Samoa, San Marino, and Suriname. The reason behind not signing or ratifying the UNCAC by these nations is mostly claimed by the argument that it is not effective in removing the corruption from the world. However, it is also arguable that most of these nations are reluctant to maintain global relations. On the other hand, it is also argued that these nations are mostly underprivileged and do not have the sufficient monetary power to implement the policies utilising the resources required. It is also debatable that the political parties of these nations are highly engaged with corruption; hence the integration of any policy to the national legal system might affect them.

Critical Evaluation of the Effectiveness of UNCAC

Based on the above-mentioned strengths and limitations of UNCAC along with the avoidance and successful implementation by different nations, it is a significant opportunity to critically evaluate the effectiveness of UNCAC in the global context. In this regard, it can be analysed that the UNCAC provides comprehensive policies regarding the way to successfully remove corruption from the world. It covers all possible areas relating to corruption, and most importantly it is not limited to international boundaries. It details about the preventive measures that restrict the occurrence of corruption in both international and domestic context. It also comprehensively mentions about the various laws to be enforced and to criminalise some of the related offences, which in turn would not only ensure justification to the society and the respective victims but also increase anxiety among people before conducting such crimes. In addition, it also attempts to improve international co-operation among different nations, which would in turn enhance mutual effort among them to deal with the corruption issues in cross-border areas. The international co-operation along with the policies in UNCAC also helps in recovering corrupted assets, which is especially from the foreign areas. Moreover, it supports in providing technical assistance and information exchange along with effective strategies for implementing the policies. Thus, it is analysed that UNCAC is highly comprehensive in dealing with every aspect of corruption. However, it can also be criticised that UNCAC involves some of the imprecise and vague norms along with a large number of non-compulsory criminalisation provisions. It can also be criticised that although UNCAC suggests the scope of amendments for further development and effectiveness of the policies, however, in reality, it is not possible. The reason behind this is that it involves in a multilateral treaty, wherein any change required can be accepted by all the member nations. However, in this regard, it can be counter-argued that any change that would benefit all the member nations can possibly be implemented. Moreover, there are many policies of UN that are amended through mutual agreement by all the member nations; hence amendment in UNCAC would not be a major issue.

In addition to the above context, it can also be evaluated that UNCAC contains non-mandatory language along with the lack of proper definition of corruption and hence an instance of corruption in one nation might not be regarded as the same offence in the other. In this regard, it can be criticised that the definition of corruption do not majorly vary in different nations, while UNCAC has suggested the list of all the activities of corruptions, hence it would not be difficult to identify an issue of offence. The effectiveness of UNCAC is also apparent from the successes received in numerous nations including Algeria, Ghana, Cuba, Jordan, and Panama among others. However, it can also be criticised that there are some of the nations, which believe that it is not as effective and hence can be avoided. In this regard, it can be counter-argued that these nations are less financially under-privileged and expect to remain isolated. Moreover, these nations have a higher degree of corruption among the political parties, and thus the integration of these policies in its legal system directly affect them. These nations cannot be forced to implement the UNCAC policies, which is also similar in case of the member nations that have ratified the policies but not fully implemented them. Thus, it reflects its major ineffectiveness in its implementation. The General Secretary of the UNODC also cannot force the member nations for its effective implementation. The reviewing of the policy implementation is not effectively executed. Furthermore, the member nations are not willing to share any information on corruption with other countries, as they perceive it to be a national security threat. It can also be analysed that lacking sufficient resources and training the human resources restricted some of the nations for its effective implementation.

Recommendations

Considering the issues identified that have restricted the effective implementation of UNCAC in some of the nations, it is an opportunity to provide some of the recommendations. In this regard, it is recommended that the UN must offer monetary support to the underprivileged nations to implement the required resources and technology. It is recommended that UNODC should provide training to all the members of the underprivileged nations, who are involved in the implementation of UNCAC policies. In addition, it is also recommended to the Apex Courts of all the nations that it should participate in the implementation of the policies and should observe if the politicians are against its implementation. It is also recommended that the General Secretary should be more authoritative and should collect reliable data regarding the status of implementation of UNCAC. Moreover, it is also important for UNODC to promote and spread awareness about the UNCAC policies among public throughout the world, which would eventually force the respective governments towards its effective implementation. In addition, it is also suggested to the NGOs, University scholars and private sector companies to effectively contribute towards the implementation of the UNCAC policies.

Conclusions

Based on the overall discussion and critical analysis regarding the effectiveness of UNCAC, it is apparent that it is successful in some of the nations but faced few criticisms along with its certain limitations that have restricted its implementations in some other countries. In this regard, it is notable that some of the nations have been able to reduce corruption level, which is primarily due to the detailed description of all the corruption issues and effective strategies, whichinclude preventive measures, criminalisation and law enforcement, international cooperation, asset recovery as well as technical assistance and information exchange, along with mechanisms for implementations. However, there are some of the countries, who have not ratified UNCAC, which is due to its poor financial condition and the willingness to remain isolated. Moreover, there are some of the corrupted politicians who do not want to get affected by the implementation of UNCAC. The UNODC also do not have the power to force any nation for the implementation of UNCAC. Furthermore, the member nations also have the anxiety of sharing some of the corruption-related information that might cause security threats. The lack of sufficient resources and training also creates a barrier towards its successful implementation. Thus, it is apparent that although the policies and strategies of UNCAC are highly effective in fighting against corruption, its implementation is not as successful to a certain extent. However, it cannot be regarded as a ‘toothless tiger’. The recommendations suggested would surely lead to its effective implementation throughout the world, which will eventually direct towards the establishment of a corruption-free global society.