Anti Corruption – Study Material

2018-10-22

Anti Corruption – Study Material

Anti-corruption comprises activities that oppose or inhibit corruption. Just as corruption takes many forms, anti-corruption efforts vary in scope and in strategy. A general distinction between preventive and reactive measures is sometimes drawn. In such framework, investigative authorities and their attempts to unveil corrupt practices would be considered reactive, while education on the negative impact of corruption, or firm-internal compliance programs are classified as the former. Legal and moral frameworks to reduce corruption date back to antiquity and gained broad international support since the last decade of the 20th century.

History :

The code of Hammurabi( 1754 BC), the Great Edict of Horemheb (c. 1300 BC), and the Arthasastra (2nd century BC)^[are among the earliest written proofs of anti-corruption efforts. All of those early texts are condemning bribes in order to influence the decision by civil servants, especially in the judicial sector. During the time of the Roman empire corruption was also inhibited, e.g. by a decree issued by emperor Constantine in 331.
In ancient times, moral principles based on religious beliefs were common, as several major religions, such as Buddhism, Christianity, Hinduism, Islam, Judaism, Sikhism, and Taoismcondemn corrupt conduct in their respective religious texts. The described legal and moral stances were exclusively addressing briberybut were not concerned with other aspects that are considered corruption in the 21st century.

In Contemporary Society :

In the 1990s corruption was increasingly perceived to have a negative impact on economy, democracy, and the rule of law, as was pointed out by Kofi Annan. Those effects claimed by Annan could be proven by a variety of empirical studies, as reported by Juli Bacio Terracino. The increased awareness of corruption was widespread and shared across professional, political, and geographical borders. While an international effort against corruption seemed to be unrealistic during the Cold War, a new discussion on the global impact of corruption became possible, leading to an official condemnation of corruption by governments, companies, and various other stakeholders. The 1990s additionally saw an increase in press freedom, the activism of civil societies, and global communication through an improved communication infrastructure, which paved the way to a more thorough understanding of the global prevalence and negative impact of corruption. In consequence to those developments, international non-governmental organizations (e.g. Transparency International) and inter-governmental organizations and initiatives (e.g. the OECD Working group on bribery) were founded to overcome corruption

Legal Framework :

In national and in international legislation, there are laws interpreted as directed against corruption. The laws can stem from resolutions of international organizations, which are implemented by the national governments, who are ratifying those resolutions or be directly be issued by the respective national legislative.
Laws against corruption are motivated by similar reasons that are generally motivating the existence of criminal law, as those laws are thought to, on the one hand, bring justice by holding individuals accountable for their wrongdoing, justice can be achieved by sanctioning those corrupted individuals, and potential criminals are deterred by having the consequences of their potential actions demonstrated to them.

International Law :

Approaching the fight against corruption in an international setting is often seen as preferential over addressing it exclusively in the context of the nation state. The reasons for such preference are multidimensional, ranging from the necessary international cooperation for tracing international corruption scandals, to the binding nature of international treaties, and the loss in relative competitiveness by outlawing an activity that remains legal in other countries.

OECD

The OECD Anti-Bribery Convention was the first large scale convention targeting an aspect of corruption, when it came in 1999 into force. Ratifying the convention obliges governments to implement it, which is monitored by the OECD Working Group on Bribery. The convention states that it shall be illegal bribing foreign public officials. The convention is currently signed by 43 countries. The scope of the Convention is very limited, as it is only concerned with active bribing. It is hence more reduced than other treaties on restricting corruption, to increase – as the working group’s chairman Mark Pieth explained the influence on its specific target. Empirical research by Nathan Jensen and Edmund Malesky suggests that companies based in countries that ratified the convention, are less likely to pay bribes abroad. The results are not exclusively explainable by the regulatory mechanisms and potential sanctions triggered through this process but are equally influenced by less formal mechanisms, e.g. the peer reviews by officials from other signatories and the potentially resulting influences on the respective country’s image.Groups like TI, however, also questioned whether the results of the process are sufficient, especially as a significant number of countries is not actively prosecuting cases of bribery.

United Nations :

20 years before the OECD convention was ratified, the United Nations discussed a draft for a convention on corruption. The draft on an international agreement on illicit payments proposed in 1979 by the United Nations Economic and Social Council did not gain traction in the General Assembly, and was not pursued further.^[21] When the UN Office on Drugs and Crime (UNODC) presented its draft of the United Nations Convention against Corruption (UNCAC) in 2003, it proved more successful. UNCAC was ratified in 2003 and became effective in 2005. It constitutes an international treaty, currently signed by 186 partners, including 182 member states of the United Nations and four non-state signatories. UNCAC has a broader scope than the OECD Anti-Bribery Convention, as it does not exclusively focus on public officials but includes inter alia corruption in the private sector and non-bribery corruption, like e.g. money laundering and abuse of power.

International Organization :

International Anti-Corruption Court :

Mark Lawrence Wolf floated in 2012 the idea to launch an International Anti-Corruption Court, as either a part of the already existing International Criminal Court, or as an equivalent to it. The suggestion was widely discussed and endorsed by a variety of NGOs including Global Organization of Parliamentarians Against Corruption (GOPAC), Global Witness, Human Rights Watch, the Integrity Initiatives International (III), and TI. An implementation of the concept is currently not scheduled by any organizations with the authority of conducting such step.

Existing International Organizations :

In 2011, the International Anti-Corruption Academywas created as an intergovernmental organization by treaty to teach on anti-corruption topics.
Many other intergovernmental organizations are working on the reduction of corruption without issuing conventions binding for its members after ratification. Organizations that are active in this field include, but are not limited to, the World Bank(such as through its Independent Evaluation Group), the International Monetary Fund (IMF), and regional organizations like the Andean Community (within the framework of the Plan Andino de Lucha contra la Corrupción).

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