Report No. 258
Chapter II
The Scope and Application of the United Nations Convention against Corruption
2.1 The heightened consciousness across nations of the growing and indiscriminate threat of corruption necessitated an international convention to tackle it.2 Negotiations for such a convention started in the first quarter of 2002 and were conducted over the course of seven negotiating sessions, between January 21 2002 and October 1 2003.3
The UNCAC was finally adopted by the General Assembly in its resolution 58/4 of 31st October 2003 and entered into force on 14th December 2005.4 In subsequent years, 176 nations signed and ratified the UNCAC in order to tackle corruption within their territory on the basis of a set of uniform rules.5
2 Travaux Préparatoires of the negotiations for the elaboration of the United Nations Convention Against Corruption, United Nations Office on Drugs And Crime (2010); see also 'Background of the United Nations Convention against Corruption', website of the United Nations Office on Drugs and Crime, available at https://www.unodc.org/unodc/en/treaties/CAC/, last visited on 4th August, 2015.
3 Ibid.
4 Ibid.
5 Ibid.
2.2 According to Article 1 of the UNCAC, the main objectives of enacting an international treaty against corruption include the promotion and strengthening of measures to prevent and combat corruption, promotion and facilitation of international cooperation and technical assistance in the fight against corruption, and promotion of integrity, accountability and proper management of public affairs and public property.
The key measures for tackling corruption as enumerated under the UNCAC include preventive measures, criminalisation of conduct, international cooperation, and asset recovery. The States Parties to the UNCAC have also established a mechanism to review its implementation through a peer review process that promotes international cooperation and the sharing of good practices.6
6 United Nations Office on Drugs and Crime, Mechanism for the Review of Implementation of the United Nations Convention Against Corruption-Basic Documents (2011).
2.3 While there exist a wide array of opinions on what constitutes public corruption, the act of bribery is considered to be the most identified form of corruption that constitutes a penal offence in a large number of jurisdictions.7 The offence of bribery or the use of undue influence have not been specifically defined in the text of the UNCAC and are left to individual formulations under the domestic laws of States Parties8.
Nonetheless, the definitional clauses under Article 2 of the UNCAC serve as an important guide in interpreting Articles 15 and 16 of the Convention, which call upon States Parties to criminalise the offer and acceptance of bribery. The supply side of bribery concerns the act of offering a bribe (active bribery), while the demand side refers to the acceptance or solicitation of a bribe (passive bribery).9
Under the UNCAC, the States Parties have an obligation to criminalise active and passive bribery of its national public officials under Article 15 and that of foreign public officials and officials of public international organisations under Article 16. Thus the definitions of a public official, a foreign public official and an official of a public international organisation under Article 2 of the UNCAC are relevant in construing the penal provisions under Article 16 of the UNCAC.
7 Ophelie Brunelle-Quraishi, 'Assessing The Relevancy And Efficacy Of The United Nations Convention Against Corruption: A Comparative Analysis', 2 Notre Dame J. Int'l & Comp. L. 101 (2011-2012); See also Michael Kubiciel, 'Core Criminal Law Provisions in the United Nations Convention Against Corruption', 9 Int'l Crim. L. Rev. 139 (2009).
8 Division for Treaty Affairs United Nations Office on Drugs and Crime, Legislative Guide for the implementation of the United Nations Convention Against Corruption (Second revised edition, 2012) ("Legislative Guide on the UNCAC").
9 Ophelie Brunelle-Quraishi (n 7).
2.4 The UNCAC defines a public official as any person who either (i) holds a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person's seniority; (ii) performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; or (iii) any other person as defined as a "public official" in the domestic law of a State Party.10
A foreign public official is defined as any person holding a legislative, executive, administrative or judicial office of a foreign country, whether appointed or elected; and/or any person exercising a public function for a foreign country, including for a public agency or public enterprise, while an official of a public international organisation is defined as an international civil servant or any person who is authorised by such an organisation to act on behalf of that organisation.11 States Parties can opt for broader or more inclusive definitions than the minimum required by Article 2.12
10 Legislative Guide on the UNCAC (n 8).
11 Legislative Guide on the UNCAC (n 8).
12 Legislative Guide on the UNCAC (n 8).
2.5 Article 15 of the UNCAC on 'Bribery of national public officials' states that :
Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(a) The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
2.6 Therefore, as per the text of Article 15, States Parties are required to penalise active and passive bribery of their national public officials through legislative or other measures in order to comply with their obligations under the UNCAC. The distinction between the active and passive sides of the offence allows for the prosecution of corrupt conduct more effectively and is intended to introduce a stronger dissuasive effect.13 The offences under Article 15 cover all instances of bribery that are either tangible or intangible, pecuniary or non-pecuniary.14
13 Michael Kubiciel (n 7).
14 Legislative Guide on the UNCAC (n 8).
2.7 Article 16 on 'Bribery of foreign public officials and officials of public international organisations' states that:
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the promise, offering or giving to a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business.
2. Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the solicitation or acceptance by a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
2.8 As evidenced by the text above, paragraph 1 of Article 16 mirrors clause (a) of Article 15, wherein States Parties are required to criminalise the active bribery of foreign public officials and officials of public international organisations.15 However, contrary to Article 15, the scope of Article 16 only extends to those acts of bribery that take place during international business transactions, including in the context of international aid.16
Further in distinction to the corresponding provision under Article 15, paragraph 2 of Article 16 only insists upon States Parties to consider criminalising the solicitation or acceptance of bribes by foreign public officials and officials of public international organisations.17
As per the travaux préparatoires of the UNCAC, paragraph 2 under Article 16 was formulated in this manner not because any delegation condoned or was prepared to tolerate the solicitation or acceptance of bribes by foreign public officials or officials of public international organisations but was rather due to the fact that the conduct under paragraph 2 was already covered in essence under Article 15, which called upon States Parties to criminalise the solicitation and acceptance of bribes by their own officials.18
As a result, the obligation to pass a law pursuant to paragraph 2 of Article 16 is not a mandatory requirement under the UNCAC but rather a directory provision that requires consideration by States Parties. However in the event a State Party chooses not to criminalise passive bribery under Paragraph 2, it is encouraged to consider providing assistance and cooperation with respect to the investigation and prosecution of the offence by another State Party that has criminalised it in accordance with the UNCAC.19
In this regard, insofar as their laws permit, States Parties are encouraged to avoid allowing technicalities (e.g., lack of dual criminality20) get in the way of exchanging information with another State that is attempting to prosecute a corrupt official under its laws, which are compliant with the UNCAC.21 It is pertinent to mention that immunities enjoyed by foreign public officials and officials of public international organisations under international law are not affected by the provisions of Article 16.22 In fact as indicated in the Legislative Guide to the UNCAC, public international organisations are encouraged to waive such immunities in appropriate cases.23
15 Legislative Guide on the UNCAC (n 8); See also Travaux Préparatoires (n 2).
16 Ibid.
17 Travaux Préparatoires (n 2).
18 Travaux Préparatoires (n 2).
19 Travaux Préparatoires (n 2).
20 Under the principle of dual criminality, an accused can only be extradited if the alleged criminal conduct in question is considered criminal under the laws of both the surrendering and requesting States.
21 Travaux Préparatoires (n 2).
22 Travaux Préparatoires (n 2).
23 Legislative Guide on the UNCAC (n 8).
2.9 The understanding of Article 16 is incomplete without reference to certain other Articles of the UNCAC. Specifically, Article 42 of the UNCAC which requires States Parties to exercise jurisdiction over offences that are (a) committed in their territory; or (b) committed on board a vessel that is flying their flag or an aircraft that is registered under its laws at the time of the commission of the offence.
Subject to Article 4, States Parties are also encouraged under Article 42 to consider establishing jurisdiction over offences that are (a) committed against its nationals; (b) committed by its national or by a stateless person who has his or her habitual residence in its territory; (c) established in accordance with Article 23 of this Convention (that deals with money laundering and proceeds of crime) and committed outside its territory but has implications within its territory; or (d) committed against itself, as a State.
This provision therefore attempts to curb transnational corruption and plug key jurisdictional gaps that enable fugitives to find safe havens to evade the process of law.24 However, as noted previously, paragraph 2 of Article 42 is specifically contingent upon the principles underlying Article 4 (Protection of sovereignty) of the UNCAC, which states that:
1. States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.
2. Nothing in this Convention shall entitle a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law.
24 Legislative Guide on the UNCAC (n 8).
2.10. Therefore, while extending the application of domestic laws under Article 42 to international borders, States Parties need to keep in mind the aforementioned principles of territorial integrity and sovereign equality under Article 4. A violation of any of these principles would not only violate the UNCAC but also the UN Charter considering that both principles are based on Article 2 of the Charter.25 Consequently, Articles 4 and 42 have to be read in conjunction while interpreting the scope of application of any law under paragraph 1 and 2 of Article 16 in order to ensure compliance with all provisions of the UNCAC.
25 Legislative Guide on the UNCAC (n 8).
Back
