THE INTERNATIONAL LEGAL FRAMEWORK AGAINST CORRUPTION

Transcription

1 THE INTERNATIONAL LEGAL FRAMEWORK AGAINST CORRUPTION

2

3 THE INTERNATIONAL LEGAL FRAMEWORK AGAINST CORRUPTION States obligations to prevent and repress corruption Julio Bacio Terracino Cambridge Antwerp Portland

4 Publishing Ltd. Trinity House Cambridge Business Park Cowley Road Cambridge CB4 0WZ United Kingdom Tel.: Distribution for the UK: Hart Publishing Ltd. 16C Worcester Place Oxford OX1 2JW UK Tel.: Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be The International Legal Framework against Corruption. States obligations to prevent and repress corruption Julio Bacio Terracino 2012 Cambridge Antwerp Portland Cover photograph istockphoto.com Winterling ISBN D/2012/7849/76 NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

5 A Froukje, Luca y mi madre

6

7 ACKNOWLEDGEMENTS This book is a revised version of my Ph.D. thesis, which I defended in 2010 at the Graduate Institute of International Studies in Geneva, Switzerland. Since then I work for the Organisation for Economic Co-operation and Development (OECD), yet the opinions expressed in this study are mine and do not engage the OECD or its member countries. In writing this study, I have enjoyed the support of many people. I will not venture to thank them all individually here, yet I would like to express my gratitude to those to whom I owe special thanks. First and foremost, I would like to express my deepest gratitude to my Ph.D. advisor Professor Andrew Clapham for his comments, encouragement and openness to exploring an uncharted topic in the field of international law. I also wish to thank the other members of my doctoral jury: Professor Nikos Passas of the School of Criminology and Criminal Justice at Northeastern University in Boston, Massachusetts, and Dr. Jean-Pierre Laviec of the Graduate Institute in Geneva. Furthermore, I am grateful to numerous people who contributed during the course of my research by discussing ideas and commenting on drafts, most notably Katharina Boele-Woelki, Ton Boele, El Cid Butuyan, Paco Cantu, Gillian Dell, Frank Fariello, Adrian Fozzard, Mark Johnson, Catherine Kessedjian, Facundo Perez Aznar, Deborah Ruiz Verduzo, Magdalena Sepúlveda Carmona, Jonathan Shapiro, Pietro Veglio, Deborah Wetzel and Dima Yared. I must also thank the Graduate Institute for awarding me a scholarship that facilitated my work. Last, but certainly not least, I would like to thank my wife Froukje, who not only read and commented on every page of this study, but whose encouragement, support and inspiration throughout this undertaking made it all possible. Julio Bacio Terracino Paris, April 2012 vii

8

9 CONTENTS Acknowledgements vii Abbreviations xv General Introduction Chapter I. The Definition of Corruption Revisited Introduction I. Approaching the Concept of Corruption II. The Paramount Role of the Law III. The International Law Definition of Corruption IV. A Word on Corruption in the Private Sector Conclusion Chapter II. The Fight against Corruption Upgraded to the International Level Introduction I. From a Moralist to an Objective Condemnation of Corruption II. Corruption Apologists : A Relative Condemnation of Corruption III. The 1990s: Corruption in the Air IV. Concern at Corruption Goes International Conclusion Chapter III. The International Regulation of Corruption Introduction I. Anti-Corruption Treaty Law Treaties against corruption Chronology of anti-corruption treaties Common structure and content of anti-corruption treaties Anti-corruption treaty law obligations Mandatory obligations to achieve a certain objective (obligations of result) ix

10 Contents 2.2. Mandatory obligations of best endeavour (obligations of conduct) Optional recommendations II. Resolutions Adopted by International Organizations The United Nations The Organization of American States The Council of Europe The Organisation for Economic Co-operation and Development The ADB/OECD Anti-Corruption Initiative for Asia-Pacific The European Union III. Transnational (or Truly International) Public Policy The notion of transnational public policy International arbitral awards Conclusion Chapter IV. The Scope of the International Legal Framework against Corruption Introduction I. The Notion of Public Official Foreign public official Official of a public international organization II. Bribery Intentionally (mens rea) Promise, offering or giving (actus reus) Solicitation or acceptance (actus reus) Directly or indirectly (indirect bribery) Bribery through intermediaries Liability for a third party action Bribery by foreign subsidiaries Undue advantage (definition of a bribe) Gifts Facilitation payments For the official or another person or entity In order that the official act or refrain from acting in the exercise of his or her official duties (Acts of Public Officials) Quid pro quo Breach of duties In order to obtain or retain business or other undue advantage in relation to the conduct of international business (transnational bribery) Passive transnational bribery Non-business related transnational bribery x

11 Contents III. Embezzlement, Misappropriation or Other Diversion of Property IV. Illicit Enrichment Presumption of guilt? Flexible presumption of innocence and easing the burden of proof The guarantee against self-incrimination Public policy considerations V. Trading in Influence VI. Abuse of Functions Conclusion Chapter V. Anti-Corruption Preventive Measures Introduction I. Preventive Anti-Corruption Policies and Practices Access to information and participation Anti-corruption preventive body II. Transparency Measures in the Public Sector Measures relating to public office Recruitment of public officials Codes of conduct Candidature for and election to public office Conflict of interests Measures relating to public finances Measures relating to public procurement Appropriate systems of procurement An appropriate balance of regulation III. Transparency Measures in the Judiciary IV. Transparency Measures in the Private Sector V. Prevention of Money Laundering Know-your-customer obligations and enhanced due diligence for PEPs Accurate record keeping and reporting suspicious transactions Shell banks, FIUs and other miscellaneous AML preventive measures VI. International Cooperation Conclusion xi

12 Contents Chapter VI. Criminal and Civil Jurisdiction over Corruption Introduction I. Criminal Jurisdiction Grounds for criminal jurisdiction Territorial jurisdiction Nationality jurisdiction Protective jurisdiction Universal or quasi-universal jurisdiction The problem of concurrent jurisdictions The obligation to extradite or prosecute II. Civil Jurisdiction Civil liability Personal civil jurisdiction Class actions for corruption Compensation Extraterritorial civil jurisdiction United States Alien Tort Claims Act Forum non conveniens III. Barriers to Jurisdiction Immunities from jurisdiction Immunities at the national level Immunities at the international level a. Immunity from prosecution b. Immunity from confiscation Act of State doctrine Amnesties Conclusion Chapter VII. Enforcement of Anti-Corruption Law Introduction I. Miscellaneous Obligations Criminalization of corrupt acts Criminalization of money laundering Anti-corruption law enforcement body Special investigative techniques Piercing bank secrecy II. Reporting Corruption Encouraging reporting Whistleblower protection xii

13 Contents 3. Legal obstacles to reporting corruption: defamation laws Protection of witnesses III. Statutes of Limitations Statutes of limitations as obstacles to the enforcement of anticorruption law Adequate and long statutes of limitations IV. Sanctions Criminal sanctions Civil and administrative sanctions V. Freezing, Seizure, and Confiscation Confiscation Procedural and other considerations VI. Liability of Legal Persons Attribution of responsibility Connection between the corrupt act and the legal person Due diligence Conclusion Chapter VIII. International Cooperation in Criminal Matters and Asset Recovery Introduction I. Extradition Complementary and subsidiary extradition international obligations The obligation to extradite or prosecute II. Mutual Legal Assistance Complementary international obligations relating to MLA Subsidiary international obligations relating to MLA Requests for MLA Execution of MLA Refusal of MLA Insufficient legal framework for MLA III. Asset Recovery Prevention of the transfer of assets Know-your-customer obligations Enhanced due diligence for PEPs Shell banks, financial disclosure, and FIUs Direct recovery of property Mechanisms for the recovery of property through international cooperation Confiscation Return of assets xiii

14 Contents IV. Miscellaneous Obligations Dual criminality International cooperation in civil and administrative proceedings Law enforcement cooperation Conclusion Chapter IX. Implementation and Enforcement of International Anti-Corruption Obligations Introduction I. Implementation Issues II. Monitoring and Follow-Up OECD Convention The Council of Europe Conventions The European Union Conventions The Inter-American Convention against Corruption The African Union Convention and the SADC Protocol The United Nations Convention III. Settlement of Disputes by International Courts The International Court of Justice and other international tribunals International human rights courts The WTO dispute settlement body Conclusion General Conclusion Selected Bibliography xiv

15 ABBREVIATIONS ADB AU AU Convention against Corruption CoE CoE Civil Law Convention CoE Criminal Law Convention COSP ECHR ECOWAS ECOWAS Protocol against Corruption EU EU Convention against Corruption FATF FCPA GRECO GTZ ICJ MESICIC MLA OAS OECD Asian Development Bank African Union African Union Convention on Preventing and Combating Corruption Council of Europe Council of Europe Civil Law Convention on Corruption Council of Europe Criminal Law Convention on Corruption Conference of the States Parties to the United Nations Convention against Corruption European Court of Human Rights Economic Community of West African States Economic Community of West African States Protocol on the Fight against Corruption European Union Convention on the Fight against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union Financial Action Task Force United States Foreign Corrupt Practices Act Council of Europe Group of States against Corruption Deutsche Gesellschaft für Technische Zusammenarbeit International Court of Justice OAS Mechanism for Follow-Up on the Implementation of the Inter-American Convention against Corruption Mutual Legal Assistance Organization of American States Organization for Economic Cooperation and Development xv

16 Abbreviations OECD Convention OECD WGB OSCE SADC UN UNCAC UNDP UNICRI UNODC UNTOC US SEC WTO OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions OECD Working Group on Bribery in International Business Transactions Organization for Security and Cooperation in Europe Southern Africa Development Community United Nations United Nations Convention against Corruption United Nations Development Programme United Nations Interregional Crime and Justice Research Institute United Nations Office on Drugs and Crime United Nations Convention against Transnational Organized Crime United States Securities and Exchange Commission World Trade Organization xvi