What is the UNCAC?

The United Nations Convention against Corruption (UNCAC) is an international treaty adopted by the UN General Assembly in October 2003. It entered into force in December 2005, representing a remarkable achievement: a global response to a global problem. With 188 States Parties (as of 11 August 2021), the Convention is unique not only for its worldwide coverage but also for the scope of its provisions, recognising the importance of both preventive and punitive measures. It also addresses the cross-border nature of corruption with provisions on international cooperation and on the return of the proceeds of corruption (‘asset recovery’). States Parties – countries that have ratified the Convention – are expected to cooperate in criminal matters, to assist each other in investigations of and proceedings in corruption-related civil and administrative matters and to consider providing technical assistance to others. The Convention further calls for the participation of civil society and non-governmental organisations in accountability processes and underlines the importance of citizens’ access to information. The UN Office on Drugs and Crime (UNODC) in Vienna serves as Secretariat for the UNCAC.

Corruption undefined: Acts and actors

UNCAC does not define ‘corruption’ as such. It rather lists and defines a series of offences that States Parties must criminalise, including bribery of national and foreign public officials as well as embezzlement by a public official. Furthermore, the Convention addresses acts carried out in support of corruption, illicit enrichment, obstruction of justice, trading in influence and concealment, money laundering, and bribery in the private sector. Concerning the agents of corrupt practices, UNCAC Article 2 uses a functional definition of the term ‘public official’: it covers anyone who holds a legislative, administrative, executive or judicial office, performs a public function or provides a public service (as defined in the domestic law of the country).

What are the contents of the UNCAC?

The UNCAC has eight chapters and 71 articles. Many of its provisions are mandatory – stating that 'States Parties shall...'. Some measures carry an obligation that countries ‘shall consider/ endeavour to adopt...’ a provision. Other measures are optional. In addition, many provisions of the Convention include clauses to prevent conflicts with national legislation, allowing for different interpretations of the Convention’s requirements in any given country.

The chapters of the Convention are described below, as well as how the Convention’s implementation is monitored.

Chapter I: General provisions

The first Chapter (Article 1) highlights the three main goals of the Convention, namely:

a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively.

b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery.

c) To promote integrity, accountability and proper management of public affairs and public property.

Chapter I is followed by the four chapters containing substantive provisions.

Chapter II: Preventive Measures

The preventive policies covered by the Convention include, among others:

• Transparent and competitive public procurement systems.
• Transparency and accountability in the management of public finances.
• A merit-based civil service with comprehensive frameworks to prevent and address conflicts of interest
• Enhanced transparency in the public administration including by ensuring that the public has effective access to information
• Auditing and accounting standards for the private sector
• Independence of the judiciary and prosecutors
• Active involvement of civil society, non-governmental organisations and community-based organisations in efforts to prevent and combat corruption.
• Measures to prevent money-laundering.

Specifically, Chapter II calls on countries to:

• Develop, implement and maintain anti-corruption policies that promote the participation of society and reflect principles of rule of law, integrity, transparency and accountability and endeavour to periodically evaluate relevant legal instruments and measures – Article 5 (mandatory);
• Have an independent and adequately resourced anti-corruption body on corruption-prevention9509737063ab – Article 6 (mandatory);
• Enhance transparency, efficiency and the use of objective criteria in the recruitment, hiring, retention, promotion and retirement of public officials – Article 7.1 (mandatory);
• Enhance transparency in the funding of electoral campaigns and political partiesbef9dfbc511d – Articles 7.3 (must consider);
• Apply codes of conduct (and of ethics) to the performance of public functions – Article 8.2 (must endeavour);
• Establish measures and systems to facilitate the reporting of corruption by public officials to appropriate authorities – Article 8.4 (must consider);
• Establish asset declaration systems for public officials regarding their private interests – Article 8.5 (must endeavour);
• Take disciplinary or other measures against public officials who violate code of ethics and other applicable standards – Article 8.6 (must consider);
• Establish appropriate public procurement systems based on transparency, competition, and objective criteria and promote transparency and accountability in the management of public finances – Article 9 (mandatory);
• Enhance transparency in the public administration, including by adopting procedures to facilitate public access to information and to competent decision-making authorities – Article 10 (mandatory);
• Strengthen integrity among members of the judiciary and prosecution services – Article 11 (mandatory);
• Take measures to prevent corruption involving the private sector, enhance accounting and auditing standards, provide sanctions for non-compliance – Article 12.1 (mandatory);
• Promote integrity in the private sector and in contractual relations with the State, promote transparency of private sector entities, prevent misuse of procedures for licenses and subsidies, impose post-employment restrictions on public officials, ensure sufficient accounting and auditing standards – Article 12.2 (optional);
• Take measures to promote the active participation of society in the prevention of and the fight against corruption – Article 13 (mandatory);
• Establish regulatory and supervisory regimes to deter and detect money-laundering – Article 14 (mandatory).

Chapter III: Criminalisation and law enforcement

Chapter III contains a set of offences that countries are mandated to establish as crimes, followed by a number of offences that States Parties are required to consider criminalising.9a53507146e2 The Convention covers the following offences:

• Bribery of national public officialsf32f5d929dcf – Article 15 (mandatory);
• Bribery of foreign public officials and officials of international organisations – Article 16 (mandatory);
• Embezzlement, misappropriation or other diversions of property by a public official – Article 17 (mandatory);
• Trading in influence (ie using influence in government to obtain favours) – Article 18 (must consider);
• Abuse of functions – Article 19 (must consider);
• Illicit enrichment – Article 20 (must consider);
• Bribery in the private sector – Article 21 (must consider);
• Embezzlement of property in the private sector – Article 22 (must consider);
• Money-laundering – Article 23 (mandatory);
• Concealment (ie disguising the true nature, source or ownership of proceeds from corruption) – Article 24 (must consider);
• Obstruction of justice – Article 25 (mandatory).

Furthermore, the Convention requires countries to take appropriate measures to effectively protect witnesses of corruption, experts and victims (Article 32) from retaliation and intimidation:

The protection of whistleblowers (referred to as ‘reporting persons’ in Article 33) who report on corruption to competent authorities should be considered.

States also have to take measures to address consequences of corruption, for example by annulling a contract, withdrawing a concession or taking other remedies (Article 34), and have to ensure that persons or entities who have suffered damage due to an act of corruption have the right to initiate legal proceedings to obtain compensation (Article 35).

Each State has to maintain a specialised, independent and appropriately resourced law-enforcement body to combat corruption (Article 36).

Chapter IV: International Cooperation

The Convention provides a basis and a framework for international cooperation and mutual legal assistance: States are obliged to cooperate and assist each other in cross-border criminal matters related to corruption offences covered by the Convention, including on extradition of suspects (Article 44);f463aa0317a4 the transfer of sentenced persons (Article 45); mutual legal assistance including information sharing, and identifying, freezing and confiscating proceeds of crime (Article 46); the transfer of criminal proceedings (Article 47); and law enforcement cooperation, including joint investigations and special investigative techniques (Articles 48-50).

Cooperation in investigations of and proceedings related to civil and administrating matters related to corruption offences is not mandatory but has to be considered by States that have joined the Convention (Article 43).

The requirement of dual criminality – meaning that the alleged crime for which mutual legal assistance is sought must be criminalised in both the requesting and requested countries – which has traditionally hindered cooperation, is loosened: States must consider this requirement fulfilled if the conduct underlying the office for which assistance is sought is a criminal offence in both countries (Article 43, para. 2).

Chapter V: Asset recovery

The return of proceeds from corruption to its country of origin is a ‘fundamental principle’ (Article 51) of the Convention and States are required to ‘afford one another the widest measure of cooperation and assistance in this regard.’

The UNCAC provides a framework for countries to adapt both their civil and criminal law in order to facilitate tracing, freezing, confiscating, and returning funds and other property obtained through corrupt activities. Depending on the case, the confiscated property may be returned to the country of origin, to previous legitimate owners, or to victims of the crime (Article 57).

• States are obliged to take measures to prevent and detect the transfer of proceeds of crime. Those measures can be divided into two categories: measures to prevent money laundering and measures on financial disclosure – Article 52 (mandatory).
• Governments have to ensure that the proceeds of corrupt acts committed in other States Parties can be confiscated and returned – Article 55 and 57 (both mandatory).

A highly contentious topic in UNCAC fora is the question of conditionality: Many countries that typically request the return of stolen assets, mostly from the global South, argue that assets have to be returned to them without any conditions being imposed by the country that is returning the assets; several States that have been repeatedly requested to return assets are seeking mechanisms and conditions to assure that the assets are not re-looted by corrupt leaders after they are returned – as a result, confiscated assets in several large cases have been held for years without being returned.de4aaee05995

Chapter VI: Technical Assistance and information exchange

In the Convention, technical assistance generally refers to support aimed at helping countries comply with the UNCAC provisions. Chapter VI includes articles addressing trainings, material and human resources, research, and information sharing. The Convention encourages trainings for personnel responsible for preventing and combating corruption on topics such as investigative methods, planning and developing strategic anti-corruption policies, preparing requests for mutual legal assistance, public financial management, and methods used to protect victims and witnesses in criminal cases.

States Parties, based on their own capacity, shall consider providing technical assistance to others, especially to developing countries, and shall consider helping each other conduct evaluations and studies on the forms, causes, and costs of corruption in specific contexts, with a view to developing better strategies and action plans for combating corruption (Article 60).

Furthermore, States Parties are mandated to take measures ‘conducive to the optimal implementation’ of the Convention, to the extent possible, through international cooperation and in coordination with each other and through international and regional organisations, to enhance financial, material and technical assistance to support developing countries’ efforts to implement the Convention (Article 62).

Chapter VII: Mechanisms for Implementation

Article 63 establishes the Conference of the States Parties (CoSP). The Conference is the main policy-making body of the Convention and seeks to improve the capacity of and cooperation between States Parties in achieving the objectives set forth in the Convention. It is assisted by the UNCAC secretariat (Article 64).a4809d68b4b9

Chapter VIII: Final provisions

Chapter VII calls upon States Parties to take all the necessary legislative and administrative measures, in accordance with fundamental principles of domestic law, to ensure the implementation of the obligations deriving from the Convention. The Chapter also includes provisions on the entry into force, the ratification process and amendments to the text of the Convention.

The UNCAC Conference of States Parties

The COSP holds biennial sessions. Its mandate includes:

• facilitating the exchange of information among countries on patterns and trends in corruption, and on successful practices for preventing and combating it;
• strengthening cooperation with relevant international and regional organisations and mechanisms and non-governmental organisations;
• periodically reviewing the implementation of the Convention by its States Parties.

Several subsidiary bodies of the CoSP have been established. Working groups and the Expert Meeting are not permanent bodies, they operate based on CoSP resolutions that define their mandate and schedule:5dcade2b8f74

• The Implementation Review Group (IRG) is an open-ended intergovernmental group of States Parties, currently meeting twice or three times per year. It provides an opportunity for countries to report on the implementation status of UNCAC provisions, and to discuss substantive issues related to the reviews and to technical assistance, as well as to share information on best practices and establish dialogues on emerging issues;
• The Working Group on Prevention meets annually and is responsible for advising and assisting the Conference in regards to preventive measures under Chapter II;
• The Working Group on Asset Recovery also convenes once per year and is responsible for advising the Conference and assisting in the implementation related to provisions on the return of proceeds of corruption under Chapter V;
• The Expert Meeting on International Cooperation meets annually to encourage the development of cumulative knowledge in the area of international cooperation, facilitate the exchange of experiences among States Parties, and assist the Conference in identifying the capacity-building needs of states.

The CoSP adopts resolutions by consensus, these usually address aspects of UNCAC implementation that States Parties would like to advance, and they often include specific mandates, for example for initiatives to be implemented by UNODC.

The Implementation Review Mechanism

The decision to create the Implementation Review Mechanism for the UNCAC was taken at the third session of the CoSP held in Doha, Qatar, in November 2009. The multi-stage peer review mechanism involves the review of each State Party by two peers – one from the same UN region and one from another one.

The review mechanism became operational in July 2010 when the IRG met for the first time. To cover all States Parties, the review process is divided into two five-year cycles where countries are randomly selected to be reviewed in each year of the cycle. The first cycle started in 2010 and covered Chapters III (criminalisation) and IV (international cooperation) of the Convention.b1e629a8a487

The second cycle, launched in November 2015 and covering Chapters II (corruption prevention) and V (asset recovery), is currently underway. Originally scheduled to be concluded by 2020, the process is facing substantial delays and the cycle has extended until 2024.7073814b88fa More than six years into the second cycle, only 57 of the 188 States Parties had completed the review process by November 2021.c7b9bc74142b

It has yet to be decided if and how the review mechanism will continue after the end of the second cycle. Crucially, there currently is no formal follow-up process on the findings and recommendations made in either of the implementation review cycles. Some countries report voluntarily to the IRG on actions they have taken after the completion of the review.

The review process consists of a desk review based on the self-assessment report of the reviewed country. A country visit of the reviewers, if requested by the reviewed country, takes place in most review processes (joint meetings are conducted in most cases, if no country visit takes place). During the Covid-19 pandemic, several country visits were conducted virtually.

The final report as well as the executive summary are consensus documents that are agreed among the reviewing states and the country under review.

The only key document that has to be published at the end of the review process is an executive summary of approximately 10 pages, which is released on the country's profile page on the UNODC website.

Transparency and participation in the UNCAC review

Two other key documents of the review process – the self-assessment checklist, in which the reviewed country details if and how it has implemented UNCAC provisions, and the full country report (usually between 200 and 700 pages long), which contains all findings of the review, including details on the implementation of the Convention’s provisions, relevant statistics and data – may only be published by UNODC on its website if the reviewed country allows it.fcc4c3e39dfe

The UNCAC review process is thus significantly less transparent than reviews of other anti-corruption conventions and mechanisms – under the review mechanism of the Inter-American Convention against Corruption, for example, full country reports as well as replies from governments and other supporting documents, such as information received during and after country visits, have to be fully published online.

Only 16 out of 173 countries that completed the first review cycle have published their self-assessment checklist on the UNODC website, a step that facilitates civil society contributions around the country visit; 89 countries have published the full country report. In the second review cycle, out of 57 countries that concluded the process, seven have published the self-assessment checklist, 20 released the full country report.96ae76a6e360

Thirty countries so far have voluntarily committed to meet minimum standards of transparency and civil society participation in the second cycle of the UNCAC review mechanism by signing the UNCAC Coalition’s ‘Transparency Pledge.’044684c845eb Complementing the pledge, the UNCAC Coalition has also developed a guide with best-practice approaches to promote transparency and participation in the UNCAC review process.2ac688664f23

Contrary to the spirit of Articles 5 and 13 of the Convention, the rules of procedure for the review mechanism do not require the participation and consultation of relevant non-governmental stakeholders, including civil society groups, in the review process. The procedures, however, encourage such involvement by the reviewed country, including when preparing the comprehensive self-assessment checklist and during a country visit of the reviewers.45652a2bcc43

Due to a lack of information made accessible on the status of the review process, civil society groups are in many cases unaware of the stage the process is in and of an upcoming visit by reviewers. Obtaining that information from the government focal point, who is coordinating the process in the reviewed country, is often difficult, as these focal points and their contact information in many cases are not published.0bc46407469c

While the Terms of Reference of the review mechanism call for a broad range of stakeholders to be consulted in country reviews, the decision on whether and how non-governmental stakeholders such as independent civil society organisations, private sector representatives and academia are invited to contribute is left to the country under review. Statistics released by UNODC highlight that 89% of country visits in the first cycle and 97% of country visits conducted under the second cycle (by June 2021)123d0f22fa9a included meetings with non-governmental stakeholders. However, these consultations may not necessarily involve independent non-governmental organisations. Most country reports do not provide information on the stakeholders that contributed to a national review process.

Participation of civil society in UNCAC fora

NGOs with ECOSOC consultative status can apply to attend a CoSP as an observer (unless otherwise decided by the Conference). Other NGOs can also apply but may only attend if there is no objection from a government. NGOs that are allowed to attend a CoSP can attend its plenary meetings, and, upon invitation of the President and subject to the approval of the conference, make oral statements or provide written reports on questions relating to their activities.2bdc8a3b3f3e

In 2017, two Hungarian NGOs were not accredited to the 7th CoSP due to an objection from a government. The UNCAC Coalition and Transparency International have highlighted a problematic lack of transparency in this process, including because the objecting State Party remains anonymous and is not required to provide any justification. Ahead of the 8th CoSP, one state objected to four NGOs – the objections were lifted and invitations were issued on the last day of the conference (too late to allow for participation in practice) and a heated, lengthy discussion on the participation of civil society followed, delaying the release of the Conference’s final report by several months. Similarly, ahead of the 9th CoSP, one State party objected to eight NGOs operating in various different countries.

CSOs have also highlighted censorship and curtailment of civil society’s freedom of expression at the CoSP, as civil society groups have to submit any materials they would like to present, display or distribute at the Conference for screening by UNODC in advance of the meeting. At the 7th CoSP, UNODC rejected and failed to clear a number of submitted documents.

Civil society representatives have not been allowed to observe meetings of the Implementation Review Group or the UNCAC working groups, even though a legal opinion of the UN Office of Legal Affairs suggested that the same procedures that apply to the CoSP (where civil society observers are allowed) should also be applied to its subsidiary bodies. Civil society organisations have long been asking to be invited to observe the CoSP subsidiary meetings, arguing that their exclusion seems to contradict the spirit of the Convention with its emphasis on civil society participation, as well as OHCHR guidelines on participation in international fora. 35fc52c832fe

How embassy and donor agency staff use the UNCAC?

The Convention obliges States Parties to enhance their cooperation at various levels with developing countries, with a view to strengthening the capacity of the latter to prevent and combat corruption. Although the UNCAC lays down internationally agreed standards, it should not be confused with a blueprint for reform. Instead, leadership in each country must determine priorities and the appropriate sequencing of implementation measures. However, where issues addressed by the UNCAC are part of a reform process in the country, donors can discuss Convention requirements in political dialogue, and integrate them in technical assistance programmes with partners. The UNCAC implementation review process may provide an opportunity to take stock of the anti-corruption framework and to engage a broad range of stakeholders, including civil society, in discussions about moving specific reforms forward.

Using the UNCAC for political dialogue

UNCAC and development anti-corruption frameworks

The UNCAC reinforces existing donor initiatives to combat corruption. The OECD Development Assistance Committee (DAC) Principles on Anti-Corruption, for example, echo the UNCAC’s holistic approach, calling for attention to both the supply and demand sides of the problem. The UNCAC implicitly promotes the Paris Declaration on Aid Effectiveness by providing a commonly agreed-upon framework for support, and by promoting accountability and transparency – two cross-cutting concepts of this declaration. c71dc72a3c0f

UNCAC and the Sustainable Development Goals

There is some overlap between the provisions of the UNCAC and targets included in the Sustainable Development Goals, in particular, SDG 16, which seeks to ‘promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.’ Anti-corruption targets include the recovery and return of stolen assets (16.4), the reduction of corruption and bribery in all forms (16.5), the development of effective, accountable, and transparent institutions at all levels (16.6), the establishment of responsive, inclusive, participatory and representative decision-making at all levels (16.7), as well as public access to information and the protection of fundamental freedoms (16.10).

UNCAC and the Open Government Partnership (OGP)

There may be significant synergies between the UNCAC – in particular, the provisions on prevention and transparency that are reviewed in the ongoing second review cycle – and the Open Government Partnership. In the framework of the OGP, 78 countries and 76 local jurisdictions co-create action plans with civil society that outline concrete commitments to enhance transparency, accountability and public participation in government. These action plans may provide an excellent inclusive mechanism to advance reform efforts that implement UNCAC provisions as well as commitments of the 2021 UNGASS Political Declaration. Donors and agencies that support the OGP mechanism can consider ways to connect UNCAC commitments with national OGP action plans.

High-level policy dialogue

Commitments to prevent and combat corruption should be anchored in high-level policy dialogue between partner governments, donors and civil society. Compliance with UNCAC (as well as the 2021 UNGASS Political Declaration) can provide a more neutral basis for dialogue, where donor interventions might earlier have been perceived as moralising or as external interference in internal affairs. Government reform priorities should be used as a basis for constructive dialogue.

Advancing anti-corruption discussions at a global level

The UNCAC Conference of States Parties and other UNCAC fora can provide an opportunity for countries to shape and advance global discussions on particular policy areas linked to anti-corruption, complementing principles and standards developed in other fora. International UNCAC meetings can also be used to strengthen ties with other States and civil society and showcase joint efforts, for example through joint side events.

Indicators and benchmarks in aid agreements

Ratification of the UNCAC obliges States Parties to take concrete steps towards compliance. Donor agencies can assist partner countries in defining indicators or benchmarks of progress and integrating them into high-level aid agreements in order to ensure regular monitoring. The different UNCAC requirements lend themselves to this purpose. However, in setting such benchmarks, government reform priorities need to be considered, and actual performance, implementation and enforcement, not just the existence or introduction of anti-corruption legislation and measures, should be evaluated.

Aid architecture

As part of donor coordination mechanisms at country level, members should agree on a division of labour among aid-related dialogue fora in a partner country and ‘mainstream’ compliance with the UNCAC into the macro-level as well as sector dialogue. The participation of civil society in these fora should be promoted. It is important that those working at the level of policy dialogue and those working at sector level interact and have a common understanding of how compliance with the UNCAC can be pursued.

The UNCAC as a framework for technical assistance

The UNCAC can provide an organising framework to deliver technical assistance to partner countries and may catalyse better coordination of analytic work and technical assistance among donors in a given country. When choosing to support UNCAC implementation, embassies and donor organisations can engage in a range of activities, whether short-term assessment initiatives to help prepare the ground for dialogue and assistance, or longer-term initiatives, which are necessary to meaningfully advance in reducing corruption. Findings of the review report and civil society parallel reports on UNCAC implementation can help identify priority areas for reforms.1bf3754251d9

Support for more inclusive UNCAC fora

Towards the end of the second review cycle, presumably at the 10th and the 11th CoSP, States Parties will discuss and decide if and how the review mechanism will continue. Donor governments should engage early in these discussions and seek to develop a proposal to continue the review mechanism, while making it more effective, transparent and inclusive, and thus more impactful.29c1f0bba99e Similarly, donor governments should publicly state their support for the inclusion of civil society observers in UNCAC CoSP subsidiary bodies, as have the signatories of the Transparency Pledge, and seek to build wider support for such an inclusion.

When some States Parties object to the participation of independent NGOs in the CoSP for apparent political reasons, without providing any factual reasons for their concerns, donor governments could respond and take steps to raise the political costs of such behaviour.

Some governments have also included civil society experts in their delegations to the UNCAC Conference of States Parties to facilitate civil society attendance in the Conference – the same could be done in CoSP subsidiary bodies.

Status of UNCAC implementation

Embassies and donor organisations can engage in proactive discussions with the partner government as to the status of UNCAC implementation. Gaps between the UNCAC provisions, as well as commitments under other relevant fora and mechanism (UNGASS Political Declaration, FATF, OGP, etc), and the framework and policies in place could be identified and addressed by engaging in multi-stakeholder collaborations: together with state and non-state actors, support can be provided at various stages.

During the UNCAC implementation review, the reviewed country, as part of the self-assessment checklist, provides information about needs for technical assistance it has identified. While UNODC, as a follow-up to the review process, may provide some technical assistance to the reviewed country, the needs assessment may provide an opportunity for other donors to engage in and provide demand-driven support.

Support to UNCAC self-assessments and the review process

Donors can assist their partners to complete the mandatory UNCAC self-assessment checklist on compliance with the Convention and provide support for the whole review process, where possible. Such involvement may facilitate an effective review process, help avoid delays and may contribute to making the review process more inclusive. The drafting of the self-assessment is best addressed in a broad manner (including and coordinating relevant stakeholders and aligning it with other national assessments and a political reform dialogue) in order to add value. Donors should also encourage States Parties to include civil society in all stages of the review process, provide assistance for this purpose, and nudge the government towards publishing the self-assessment checklist and the full country report on the UNODC website (as well as on a dedicated national website). The Going Beyond the Minimum (GBM) methodology developed by UNODC and UNDP promotes a more inclusive and broader self-assessment process.

Strengthen the UNCAC review mechanism

To ensure the maximum possible impact of the UNCAC implementation review process, donors and embassies can engage the country under review to encourage and support a highly transparent and inclusive process.88946b6feef6 To facilitate civil society contributions to the review, donors should consider providing funding for relevant activities, such as CSO parallel review reports, follow-up action and engagement in a specific policy reform process.9fb98aa375f3

Support national follow-up discussions and action plans

To help generate a momentum for reforms from the UNCAC implementation review, donors may want to support follow-up discussions, the development of anti-corruption strategies and action plans that address recommendations made in the implementation review. Ideally, such fora should be inclusive and be open to all relevant governmental and non-government stakeholders.

Engage with civil society

External scrutiny is key for assessing the enforcement and impact of government reforms. Embassy and donor agencies staff often lack the necessary UNCAC-based knowledge to engage in fruitful partnerships with anti-corruption bodies/institutions. Collaborating with civil society, in this sense, can help them get the expertise (both theoretical and practical). On the other side, civil society organisations might find a strong advocacy ally in embassies and donor agencies. When delivering technical assistance, donors should consider how to involve and include civil society actors in these efforts, alongside governmental beneficiaries.e644f7c19537

Support and defend anti-corruption activists

It is important for Embassy staff and national donors to recognise the important role of civil society activists and defenders, as well as those of journalists and whistleblowers, who come under attack when exposing corruption and human rights violations. In such cases, support could be provided publicly and/or behind the scenes, for example by raising a case with authorities or by providing visas allowing those under attack to travel to a safe place.

Practice what you preach

Donor countries should similarly ensure that their UNCAC review process is transparent and inclusive. If donor countries make accessible the contact information of their country reviewers and the schedule of country visits they are involved in and share this information with civil society in the reviewed country, this may help facilitate a more inclusive review process.

Strong compliance with UNCAC provisions can decrease the country’s attractiveness as a destination for money laundering and storing stolen assets, for example through a strong anti-money laundering framework, conflict of interest provisions for public officials, and ensuring transparency of beneficial company ownership.

Specialised legal assistance

International and regional legal specialists can be useful to help partner governments bring domestic law and institutional arrangements into compliance with UNCAC requirements and to implement international best practice approaches. Funding for long-term advisors and mentors provides hands-on technical support to government institutions involved in corruption prevention and control.

Pool of expertise

In order to adequately address the comprehensive demands of UNCAC implementation and technical assistance, the various institutions within a donor country should consider a whole-of-government approach (WOGA), pooling and coordinating their relevant expertise (eg legal departments, supreme audit institutions, financial crime units) and perspectives (development professionals and experts engaged in bilateral and multilateral cooperation, as well as experts focussing on domestic implementation and enforcement).

Knowledge and learning

Donors can support the establishment of fora for communication of lessons learned from experience, in and between countries. In many regions, there is already an existing mutual assistance practice that can potentially to some degree be transferred to the implementation of the UNCAC. Donors should explore avenues for strengthening this practice of south-south cooperation – partnerships between developing countries, which often have more advanced frameworks in place in areas such as government transparency than the donor countries. Donors should also invest in evaluating lessons learned of reform efforts wherever suitable.

Using the UNCAC to address international drivers of corruption

Due to its broad coverage (including international anti-corruption measures such as mutual legal assistance) and global scope, the UNCAC is well suited to address the increasingly global nature of corruption and the cross-border money transfers that hide its proceeds. For this potential to be fully achieved, donor countries also need to act on the home front. Leading by example will facilitate a more credible dialogue with partner governments.

Address international drivers of corruption

Donor countries should address international drivers of corruption by prosecuting cross-border bribery cases, limiting bank secrecy, holding facilitators of corruption (such as financial service providers, lawyers, consultants, banks, real estate agents, etc) to account and by providing technical expertise especially on the international aspects of mutual legal assistance, such as asset recovery claims. Furthermore, donor countries should allocate adequate staffing and resources to bodies providing mutual legal assistance and should, wherever possible, actively share information with the partner country (ie on identified and frozen assets originating from corruption cases in that country). Donor agency and embassy staff can identify existing hurdles between their home country and their partner country in mutual legal assistance and asset recovery cases, and embassy staff can use their institutional channels to ease the often-cumbersome communication process between countries. Embassies can explore whether home country institutions can support investigations. Diplomatic measures against suspected persons (such as visa bans) can be refined and applied. Donor agencies can also advise on the management of repatriated assets.

Ensure agency practices are in line with the UNCAC

Donor and embassy staff should ensure that their agency practices are consistent with Convention standards (eg address the management of facilitation payments, conflicts of interest, transparency about funding, whistleblower mechanisms, access to information provisions, etc).

Get to know what your partner government is doing to implement the UNCAC

Donor agencies and embassies should ask partner governments to make available UNCAC-related information to the public, allowing local civil society groups, other local stakeholders, as well as the development and donor community to act upon this information. This includes a country’s responses to the UNCAC self-assessment as well as the full country report once the review is completed, and, in particular, their identification of technical assistance needs.90b2059c8872 This information can be a useful basis for dialogue. Partner governments are not obliged to make this information available but should have an interest in doing so if they expect support for their efforts.a1e78b44bdfc

Countries under review submit a ‘governmental experts list’ to UNODC, which is published – with varying level of detail and without contact information – on the country’s profile page. This list will usually include the government’s focal point who is coordinating the review. Where partner governments have no identified UNCAC focal point, embassies can address their own mission at the UN in Vienna to contact a partner country’s mission there or to request this information from UNODC. This may be cumbersome, but as UNCAC responsibilities at country level often seem unclear or hidden, such channels can create useful pressure on States Parties to be more transparent with their information, especially if seeking assistance.

While a country’s self-assessment checklist can serve as a first basis and trigger for dialogue, it may not be sufficient for setting priorities for anti-corruption assistance. Information gathered through self-assessments can have several potential flaws, including executive bias, insufficient coordination between institutions when information is gathered, reporting of de jure rather than de facto implementation, and insufficient reflection of national reform priorities. For instance, only few governments will include technical assistance needs of civil society and other non-executive actors (eg parliaments or the judiciary). However, there exists a great set of inputs of technical nature from civil society organisations that may also be able to share written inputs to the process, including by producing parallel review reports. Embassy and donor agencies’ staff may access and directly contact CSOs active in UNCAC-related matters and enhance their visibility.15ef3707aaf9

The strengths and weaknesses of the UNCAC

Opportunities

• The UNCAC covers almost all jurisdictions and provides not only an international legal basis for cooperation, including on mutual legal assistance and the recovery and return of stolen assets, but is also a political tool for dialogue between countries and between governments and their citizens.
  
• The UNCAC defines universally agreed-upon acts of corruption and ways to address them within one framework, thus offering an opportunity to overcome hitherto fragmented and often piecemeal efforts.
  
• The UNCAC fosters the international exchange of expertise, good practices and lessons learned, and it can be instrumental in coordinating international assistance.
  
• The UNCAC implementation review mechanism may provide a window of opportunity to generate momentum for reforms by supporting follow-up action, including through collaboration with civil society.
  
• The UNCAC can provide a forum and mechanism to advance anti-corruption debates on a global level, complementing the developments in other relevant international, regional and multilateral fora including the SDGs, OECD, FATF and the Open Government Partnership.

Challenges

• Discussions under the UNCAC are shaped by the so-called Vienna Spirit of Consensus: Decisions are reached not through votes but through negotiations until there is no objection. While this approach may ensure broader buy-in, it also empowers those States Parties that are not in favour of a strong global anti-corruption framework and can result in the adoption of the lowest common denominator. The weak transparency and accountability measures of the UNCAC and the shrinking space for civil society are results of this diplomatic culture. For example, the names of States are anonymised in reports analysing global implementation of UNCAC provisions; reports on national UNCAC implementation are consensus documents that are approved by the government under review. Furthermore, some States have temporarily stalled UNCAC negotiations because of bilateral conflicts rather than out of concerns about policy issues linked to anti-corruption efforts.
  
• The UNCAC is not a blueprint for anti-corruption reform; it is a compilation of important measures which lack prioritisation or sequencing. Reform must be designed to address country-specific forms, manifestations and dynamics of corruption and to fit into the country’s institutional arrangements and procedures. However, UNCAC country reports can help to identify good practices that can be replicated and supporting UNCAC documents can provide guidance to ensure strong anti-corruption policies. While UNCAC provisions provide a foundation, States should aim to adopt and implement state-of-the-art policies and mechanisms that reflect regional and international best-practice models, going beyond the standards of the UNCAC.
  
• The UNCAC may be used as a fig leaf: some states may use the UNCAC to deflect criticism from donors or political opponents while doing little to implement and enforce its provisions. Diplomatically worded UNCAC review reports that fail to adequately address major gaps in a country's anti-corruption and integrity framework will not help to advance reforms. The UNCAC’s impact will increase if there are higher levels of transparency applied in the review process and UNCAC fora and adequate space is provided to ensure active civil society participation.
  
• The UNCAC is not an end in itself. UNCAC assessments and implementation efforts may be perceived as a stand-alone exercise. For local reformers and their donor/embassy partners, though, it is best employed as a political and technical tool to support better governance in the pursuit of development, complementing other relevant international, regional and multinational good governance and anti-corruption mechanisms and frameworks.

Further reading

UNCAC Coalition

• Transparency Pledge
• Civil society parallel reports on UNCAC implementation

Transparency International

Basel Institute on Governance

Open Government Partnership

Stolen Asset Recovery Initiative (StAR)

UNODC: United Nations Convention against Corruption

UNODC: Documents, publications and tools

UNGASS 2021 against corruption: Political Declaration

FACTI Panel: Report of the High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda

UNODC – UNCAC documents

Full text of the UN Convention against Corruption

Technical Guide to the UNCAC

Legislative Guide for the Implementation of the UNCAC

Mechanism for the Review of Implementation of the UNCAC (UNODC) — Basic Documents

Rules of Procedure for the CoSP to the UNCAC, Rule 17

Guidance note on how to fill in the revised draft self-assessment checklist on the implementation of chapters II (Preventive measures) and V (Asset recovery) of the UNCAC